TSE: Moraes applies R$600,000 in fines to profile owners – 12/03/2023 – Power

The president of the TSE (Superior Electoral Court), Alexandre de Moraes, imposed a fine on the owners of two profiles on X (formerly Twitter) which, in total, should be around R$600,000.

The decision, from June and which imposes a daily fine of R$20,000 applied for at least one month, states that there was “clear non-compliance” on the part of Wagner Pereira and Rita de Cássia Serrão with the measure previously imposed.

This is because, at the end of January, when ordering X to reactivate these accounts, Moraes determined that this daily fine would be applied in the event that they resumed publishing blocked content or published “other messages instigating or encouraging a military coup, attacking the Electoral Justice and the democratic rule of law”.

The accounts had been suspended in November 2022 for posts that were considered disinformation against the integrity of the electoral process.

Throughout the process, however, neither of them was notified to make them aware that their expressions on the internet were subject to such conditions. Until then, communications were only directed to the social media platform.

The decision with the fine for non-compliance took place on June 1st, with an order to apply from May 1st until the date of removal of the posts, which was done by X, since in the same decision Moraes ordered the platform to delete eight links .

On that date, the minister also removed the confidentiality of the process and ordered “immediate summons to those involved”.

Rita de Cássia told Sheet, by telephone, which was not notified or notified by the TSE. She says that, at the time her profile was suspended, she tried to access the process with a lawyer, but, due to confidentiality, she was unable to do so.

Also according to Rita, when suspending the account, Twitter informed that the measure was due to a court order.

In the TSE report that supported Moraes’ decision to fine him for non-compliance, there is only one post by Rita — published on May 1st and with 61 views.

“The purest truth, which leaves us with the certainty that they did not win the election but rather took power”, she tweeted alongside a post by a columnist who said that Lula’s popularity could not be compared to Bolsonaro’s.

Moraes stated that “we can see the recalcitrance of Wagner Pereira and Rita de Cássia in spreading disinformation against the elections, in open support for undemocratic acts.”

The report also tried to contact Wagner, but received no response.

Wanted by Sheetthe TSE informed via communications that it is still in the process of locating both, but did not respond because there was no notification of the January decision.

At the beginning of October, Moraes asked the Electoral Inspectorate to provide the addresses of the two registered in the Electoral Register. On November 9, when he was leaving his post as inspector general of the Electoral Court, Benedito Gonçalves gave Rita’s address, but as for Wagner, he stated that there were namesakes.

The electoral resolution used by Moraes to issue the fine was approved on the eve of the second round of the 2022 election to combat misinformation about the electoral process. The court expanded its police power, providing for action on these contents even without being provoked.

As shown by the Sheetthe TSE denied, in November this year, access to quantitative data on profiles and content blocked by the court based on it, claiming judicial secrecy.

Experts consulted by Sheet generally see problems in imposing fines for non-compliance without prior notice. Of 7 interviewees, 1 did not give an opinion on this aspect.

Another layer of discussion raised is related to the fact that the decision was taken in June, months after the end of the electoral process, marked by the diploma of those elected. There are those who defend acting outside the period and those who view it critically.

Artur Pericles, doctor in constitutional law, also highlights that the resolution provided for the president of the court to act ex officio only for cases with identical content to that already judged by the plenary, but did not foresee the ex officio action to suspend accounts or on content not considered by the plenary.

“At this point, it appears that the decisions go beyond the resolution approved by the TSE”, he states.

Paulo Rená, who is co-director of the NGO Aqualtune Lab (part of the Coalition Rights on the Network), states that without a prior summons there is no way to demand payment of the fine. “If there was no subpoena, there is no basis in the case to demand compliance with the decision.”

Electoral lawyer Paula Bernardelli also believes that the fine will be the subject of discussion in the process. “The fine for non-compliance requires awareness of an order to be breached,” she says.

Regarding the issue of the competence of the Electoral Court, Paula states that it does not end with the passage of time and highlights that the petition in which the fine was issued had started during the electoral process.

Clarissa Maia, who is a lawyer and has a doctorate in constitutional law, says that, although the Electoral Court continues to judge cases after the electoral process has ended, they cannot cover acts that occurred outside the electoral process.

In addition to the lack of a subpoena, she sees as problematic the fact that the decision itself imposing the possibility of a fine was also made after the electoral period had ended.

Electoral lawyer Ricardo Penteado also understands that this type of action would not be appropriate after the electoral campaign period.

He also states that, based on summary 18 of the TSE, even during the electoral process, the electoral judge would not have the legitimacy to, ex officio, initiate proceedings with the purpose of imposing a fine, when acting with his police powers.

Lawyer and professor Vânia Aieta, general coordinator of Abradep (Brazilian Academy of Electoral and Political Law), was the only one to disagree regarding the subpoena. “That [a falta de intimação] it is absolutely irrelevant in the Electoral Court”, she says. “If they were already in error before, they were already in non-compliance”.

She also stated that the Electoral Court’s police power is permanent and that, in this specific case, this is not a new action.

Prosecutor Rodrigo López Zilio, in turn, assesses that the decision represents a recognition of an expansion of the competence of the Electoral Court, but he considers that this is a reasonable understanding in the specific case of defending the integrity of the electoral process.