STF maintains resolution that increased TSE powers against “fake news”

The Federal Supreme Court (STF) formed a majority, this Friday (15), to maintain the controversial resolution of the Superior Electoral Court (TSE) that gave police power to the Court to act against “misinformation” about the electoral process.

The resolution came into force on October 20th last year on a temporary basis, under the allegation of combating disinformation during the electoral period, but remains in force to this day, allowing TSE ministers to order the removal of content on social media about facts that consider “known to be untrue or seriously out of context”, or that affect the “integrity of the electoral process”.

The maneuver carried out by ministers to make it easier to exclude official content (that is, without provocation) was criticized even by the North American newspaper New York Times, who stated that from it “a man can decide what can be said online in Brazil”. The reference is related to minister Alexandre de Moraes, president of the TSE, who headed the resolution. It was thanks to this measure that Moraes has already censored the social networks of ordinary people and influencers, even parliamentarians with mandates.

The action against the measure, which was filed by the former Attorney General of the Republic, Augusto Aras, on October 21, 2022, began to be judged in a virtual Plenary this Friday (8). With the vote of Luís Roberto Barroso, the Court had 6 votes to 0 to maintain the validity of the measure. As the case is analyzed in the virtual plenary, ministers simply cast their votes in the Court system, without debating the topic.

In addition to Barroso, ministers Edson Fachin (rapporteur), Alexandre de Moraes, Carmén Lúcia, Cristiano Zanin, Dias Toffoli voted to maintain the resolution.

TSE resolution benefited Lula’s candidacy

The resolution, approved 10 days before the second round of elections, was used to remove content considered false news by ministers, such as those that attributed corruption to Lula, due to the fact that his convictions had been annulled. At the time, experts warned of the risks of the rule and its use after the electoral period.

In the action against the measure, the former Attorney General of the Republic Augusto Aras questioned excerpts of the document that give the TSE the power to determine ex officio the removal of publications from social networks, something not provided for in the Constitution, with the possibility of suspending the measures. platforms or impose fines that can reach R$150,000 per hour of non-compliance. Aras also pointed out as unconstitutional the possibility of the Electoral Court temporarily removing profiles and pages on social networks, as Minister Alexandre de Moraes did.

Minister Edson Fachin, rapporteur of the action, voted against the former prosecutor’s arguments, an understanding followed by other ministers. According to him, the right to freedom of expression “can be compromised, specifically, in the case in which it is used to erode trust and the legitimacy of political-electoral fairness. This is a specific concession, analyzed in light of the concrete violation of electoral rules and not prior and previous censorship,” he wrote.

He states that freedom of expression cannot be used to attack democracy, and that the resolution seeks to “curb the use of virtual persona, concealment through social networks, so that this locus serves to disseminate false information that can impact elections and the integrity of the electoral process.”

At the time of the challenge, Aras also presented a request for an injunction to suspend the resolution, but the majority of ministers maintained its validity.