STF has majority in favor of rule that expands TSE powers – 12/15/2023 – Power

The STF (Supreme Federal Court) formed a majority this Friday (15) to maintain the resolution of the TSE (Superior Electoral Court) that expanded the court’s powers to act against disinformation about the elections.

The rapporteur, minister Edson Fachin, who voted for the validity of the rule, was accompanied by ministers Alexandre de Moraes, Cármen Lúcia, Cristiano Zanin, Dias Toffoli and Luís Roberto Barroso.

Approved ten days before the second round of the 2022 elections, the measure had been questioned by the then Attorney General of the Republic, Augusto Aras.

The trial takes place in the virtual plenary, with written votes from ministers entered into the court’s electronic system. The trial session in this case ends on Monday (18). Until then, there may be a request for review (more time for analysis), for prominence (to take the case to the physical plenary) and ministers can also change their votes.

Until 10pm this Friday (15), ministers André Mendonça, Gilmar Mendes, Kassio Nunes Marques and Luiz Fux had not voted.

Aras had made, back in 2022, a preliminary request for the STF to determine at the time “the immediate suspension of the effects of the questioned norms”, which had already been denied by Fachin in October last year and endorsed by the majority of ministers. Now the ministers analyze the merits of the action.

In February of this year, Aras said that he reiterated the arguments initially presented and asked the STF to declare almost all items of the resolution unconstitutional, including the one that allows the TSE to determine ex officio (without provocation) the removal of content from the internet.

In the action, he also argues that the possibility of temporary suspension of profiles and accounts on social networks, provided for by the resolution in the case of “systematic production of disinformation”, constitutes “prior censorship prohibited by the constitutional text”. And he criticizes the fact that the president of the TSE was given the power to extend the removal decision already made to other identical content.

Among other points, Aras argued that, by approving these rules, the TSE would have exceeded the limits of its power to issue rules, establishing prohibitions and sanctions different from those provided for by law.

In the judgment on the merits, Fachin states that the grounds that served to deny the injunction remain valid.

The rapporteur also cited, as a context, the increase in complaints about misinformation in the 2022 election compared to 2020.

Fachin argues that the right to freedom of expression “may give way” when it is used “to erode the trust and legitimacy of political-electoral fairness.” He also highlighted in his decision that the rule does not cover traditional media, but the dissemination of false information “through virtual media and the internet”.

He states that “the suspension of messaging providers and services is not considered” in the resolution, but rather the control of profiles, channels and accounts. Fachin denied that the rule would deal with “prior and prior censorship”, saying that the limitation is made specifically, analyzed “in light of the concrete violation of electoral rules”.

Current president of the TSE, minister Alexandre de Moraes, in his written vote, said he fully supported the rapporteur’s vote.

According to Moraes, “the widespread propagation of false impressions of a serious and undemocratic nature, which aim to hack public opinion, undermines the fundamental right to true information and misleads voters.”

Adding that, in this scenario, “the State must react effectively and constructively against the harmful effects of disinformation.”

Moraes also stated that the TSE resolution “came to preserve the normal conditions of the election, eliminating the social risks associated with misinformation”, which would harm “the peaceful acceptance of the results”.

In analyzing the preliminary decision, in October last year, ministers Luís Roberto Barroso, Cármen Lúcia, Dias Toffoli, Gilmar Mendes, Ricardo Lewandowski, Alexandre de Moraes, Luiz Fux and Rosa Weber followed Fachin’s vote. Minister Kassio Nunes Marques and, partially, Minister André Mendonça were defeated, who disagreed.