TSE transparency group in the 2024 elections does not say how it will act

The Superior Electoral Court (TSE) created a study group to dedicate itself to integrity and transparency on the internet, on December 19th. According to the TSE’s own disclosure text, the committee’s focus will be on the 2024 municipal elections. Despite this, the document does not explain what should be done by the invited experts. The use of vague terms, the Court’s history and Moraes’ pressure to regulate networks leaves defenders of freedom of expression attentive to what will be done by the experts.

The ordinance that creates the Study Committee on Digital Integrity and Transparency on Internet Platforms in the Electoral Process was published one day before the Judiciary began its recess. The text does not give many details about what the work carried out by the group will be like. It only informs that it will assist “through consultations and suggestions on topics presented to them” by the TSE. The president of the TSE, Alexandre de Moraes, will lead the group’s activities. The body was contacted to provide further clarification about the committee, but did not respond to questions made by the People’s Gazette.

As it also deals with digital integrity, the components must dedicate themselves to the use of Artificial Intelligence (AI) during the electoral campaign. On the 4th, the Court presented a draft on rules for the use of AI that will be debated in public hearings on the 23rd, 24th and 25th of January. The initial text foresees punishment for “dissemination of fake news” and holding platforms responsible for “untrue” or “decontextualized” content. But, as usual, the organization does not offer parameters to define what will be considered fake news.

TSE censored content in the 2022 elections

In October 2022, shortly before the second round of elections, a TSE resolution gave police power to Minister Alexandre de Moraes, current president of the body, to order the withdrawal of the internet, without provocation from any party or the Public Ministry, of content that was considered “known to be untrue” or “severely out of context”. Subsequently, a request for an injunction from the then Attorney General of the Republic, Augusto Aras, to suspend the validity of the resolution was denied by the Federal Supreme Court, allowing Moraes to order the removal of posts and news and the suspension of internet profiles, with the justification for combating “fake news”.

One year after the decision, the Court refused to provide information on the application of the resolution, requested by the Folha de S. Paulo. The agency declined to inform the number of posts, videos, profiles, accounts and groups blocked or removed based on the resolution.

Parliamentarians such as Bia Kicis (PL-DF), Nikolas Ferreira (PL-MG), Cabo Junio ​​Amaral (PL-MG), Marcel Van Hattem (Novo-RS) and Major Vitor Hugo (PL-GO) had their profiles taken down. Federal deputy Carla Zambelli (PL-SP) had her accounts taken down on YouTube, Facebook, Instagram, Twitter, Telegram, TikTok and LinkedIn, following a decision by the TSE.

In 2022, the Court also carried out prior censorship by banning the release of the documentary “Who ordered Jair Bolsonaro to be killed?” from the production company Brasil Paralelo. The TSE also ordered the removal of 31 posts that indicated Lula’s support for the Nicaraguan dictatorship, led by Daniel Ortega. One of the posts removed was a tweet from People’s Gazette which dealt with the blocking of television network transmission CNN in Ortega’s country, highlighting his proximity to Lula.

Last December, the Supreme Court formed a majority to maintain the resolution during the next electoral period. In this way, the TSE continues to have superpowers during the 2024 municipal elections. A partnership with Anatel should lead the Court to accelerate compliance with judicial decisions. The cooperation between the two will make the channel between TSE and Anatel direct, without the need for intervention by court officials, as is usually done.

Executive and Legislative also push for network regulation

Minister Alexandre de Moraes himself has already made several statements in favor of a particular type of media regulation, in which platforms must remove content that has been considered fake news by the Judiciary, without any formal request or judicial mediation – a measure that could compromise the freedom of expression, according to experts. In one of them, he stated that the National Congress or the Courts must embrace the agenda by proposing a law that obliges platforms to do this. In addition to the Judiciary and the Legislature, the Lula government has already announced that it must work in the same direction.

PL 2630/2020, better known as the Fake News PL, is being processed in the Chamber of Deputies and receives support from deputies from the government base to move forward. The lack of criteria to establish what is fake news or disinformation is the main problem, as it opens up space for censorship and leaves the responsibility to the platforms to decide what should or should not be removed.

The constitutionalist and specialist in freedom of expression, André Marsiglia, analyzes the dangers of the text in his account on X. “The PL does not consider fake news, nor disinformation, nothing. It only transfers the obligation to combat illicit speech to big techs. But what is illicit speech? The project doesn’t say. Obviously, in the midst of subjectivity, for fear of fines and for fear of making mistakes, companies will take down much more content than they should. In other words: censorship. The key to censorship on networks leaves the hands of the State for the platforms. The PL privatizes censorship”, he published.

Committee guests support Fake News PL

Nina Santos, one of the experts who make up the committee, participated in a seminar in Salvador (BA) on the Fake News PL, in June 2023. Orlando Silva (PCdoB-SP), rapporteur of the bill, and João Brant, Lula’s Secretary of Digital Policies, made up the table. The teacher praised the work of the parliamentarian and Brant and supported the approval of the Fake News PL.

Nina Santos added that the text has problems, but did not specify what they were. According to her, PL 2630 is a first step in regulating social networks. “Yes, it is a first step so that we can take the second, third and fourth”, she stated during the event.

In the same vein as Nina Santos, Beatriz Kira, another member of the TSE group, defended the PL from Fake News. Kira states that “the bill represents an important step in the challenging and complex construction of internet regulation in Brazil” in an article published by Jota in April.

In another text, the expert evaluated the case of Telegram, in which the STF threatened to suspend the network for running a campaign against the bill. At the time, Kira stated that Moraes had an exaggerated and disproportionate reaction to the decision, since, if it actually occurred, “it would restrict the right to communication and freedom of expression of millions of Brazilians who were not involved in any illegal activity” .