Videos vetoed by the TSE remain off the air after the end of the electoral process

More than three months after the end of the election, videos and pages that were removed from the internet by the Superior Electoral Court (TSE) during the 2022 campaign and that could already, in theory, have returned to the air remain off the network. In some cases, this occurs even when the minister responsible for vetoing that content has again released its display. Survey made by People’s Gazette verified at least three such situations.

One of them involves a video of a rally, shown by the campaign of President Luiz Inácio Lula da Silva, in which he said that former President Jair Bolsonaro was a “genocide”. On October 6, shortly after the first round of the election, at Bolsonaro’s request, Minister Cármen Lúcia ordered Google and Facebook to remove the video from YouTube and Instagram.

This Tuesday, when accessing the video link on Instagram, the report found that it returned to the air in its entirety. When accessing the YouTube URL, however, the following message is displayed: “Video unavailable. This content is not available in this country domain due to a warrant.”

The video is a recording of Lula’s speech at a rally that took place in September 2022 in Taboão da Serra (SP). In it, the PT candidate said that the family of a supporter, stabbed to death in Confresa (MT), “was a victim of the genocide called Bolsonaro”.

Cármen Lúcia had the video deleted accepting a request from Bolsonaro’s defense, due to the fact that Lula held him responsible for the death. “The references do not only show political criticism or a legitimate expression of thought. There is the dissemination of a message without demonstrating the veracity of what was stated”, considered the minister at the time.

The decision was later endorsed by the plenary of the TSE on October 27 and, according to information contained in the process, was fully complied with by the companies. However, on November 4, after the election, Cármen Lúcia filed a lawsuit noting that, with the end of the electoral process, there was a “supervening loss of the object” of the lawsuit.

With that, extinguished the process and released the publication of the videos again. To this end, he cited a rule from the TSE resolution on the inspection of advertising, according to which “once the election is held, court orders to remove content from the internet not confirmed by a final and unappealable decision on the merits will cease to produce effects, and the interested party will be responsible for requesting the removal of the content by means of an autonomous legal action before the Common Courts”. That is, the content only remains off the air if the common Justice so determines. The rule is in paragraph 7, article 38, of Resolution 23,610, of 2019.

A similar situation occurred with the then MDB presidential candidate, Simone Tebet, current Minister of Planning. On September 2 of last year, TSE Minister Paulo de Tarso Sanseverino responded to her request to remove texts, videos and posts on networks published by the Partido da Causa Operária (PCO), which linked her to “massacre ” of Indians and “murder of children”.

Her defense pointed out “patent illegality of speeches, videos and messages, in which the candidate is associated with barbaric crimes”, pointing to slander on the part of the PCO. Sanseverino had everything taken down and the TSE plenary confirmed the order a few days later, with the agreement of the Electoral Public Ministry. After the first round, however, with Tebet already out of the running, Sanseverino decreed the “supervening loss of procedural interest”.

Like Cármen Lúcia, he cited the internal rule that the removal order should no longer take effect. He also added a TSE decision from 2018 according to which “once the electoral process is over, with the diplomation of those elected, the reason for the measure limiting freedom of expression ceases, embodied in the determination of the withdrawal of electoral propaganda considered to be irregular, before the mismatch between this judicial decision and the end in view (immediate guardianship of the elections)”. In other words, removing the content would no longer make sense as it could no longer affect the electoral dispute.

Of the four removed URLs, three remain suspended. But the PCO website itself still displays a text entitled “Tebet wants to revive the child murders of the FHC Era” – the article says that the candidate intended to choose names “from neoliberal politics” for the economic team, “which refers to the FHC Era , when more than 300 children died of hunger every day”.

A third case is related to former PDT presidential candidate Ciro Gomes. In September, he was questioned by the newspaper O Estado de São Paulo, which showed the event live. At one point, asked what he thought of identity politics, he said that “if you divide society into a thousand fragments, you make this society an easy prey for arrogance, for the selfishness of this powerful minority that distracts us”.

Then, when criticizing the fact that it was an international agenda, he fired: “Who is funding these agendas in Brazil is the Open Society of George Soros, you know?! The Psol is financed by George Soros, so he makes this little speech and will ally himself with Meirelles”.

Psol triggered the TSE denying being banked by the Hungarian millionaire, pointed out “defamation” and asked for the right of reply, as well as the removal of the video or the suppression of Ciro’s statement about the party. At the end of September, Minister Maria Claudia Bucchianeri ordered Estadão to remove this speech by Ciro Gomes from the video and, in October, ordered the newspaper to publish Psol’s right of reply.

The Estadão published the response, but appealed. In November, after the election, the minister dispatched the process acknowledging the fulfillment of her orders, and then stated that, therefore, the appeal would be impaired. “Once the obligation resulting from the deferring decision of the right of reply is satisfied, the remaining appeals are shown to be impaired, given the irreversibility of the judicial provision”.

She closed the case, but did not consider the possibility of the Sabbath video being re-aired. Of the three YouTube links vetoed by the minister, two remain offline, but a third, with the entirety of the sabbath, is available, including the complete speech by Ciro Gomes about Psol.

The report asked the TSE why the same content remains suspended on certain platforms and back on others, but there was no response until the publication of this report – the space remains open.

Lack of clarity by TSE and organization of platforms favors unlimited suspension

A researcher in the area, lawyer Diogo Rais recalls that the rule that allows the return of suspended content in the campaign was created in 2017. In the 2018 elections, in which it was applied, Minister Alexandre de Moraes already defended, in judgments, that it be overcome, to allow the content to remain removed after the election period.

His argument was that candidates’ honor should be protected after elections. Most justices, however, considered that the role of the Electoral Justice was only to guarantee balance and fairness in the electoral dispute, and that politicians should resort to the common Justice to defend their honor, an argument that prevailed at the time.

The resolution changed in 2019 to establish that, when the TSE removed content in a decision on the merits (further in depth), it should remain suspended. This happened a few times in the 2022 elections. In most cases, only injunctions were issued by the rapporteur and then countersigned or reversed by the plenary. In these cases, the resolution allows the content to return.

For Rais, it is possible that the return is not taking place due to lack of clarity from the TSE as to the date on which this will be possible, due to lack of subpoena from the platforms, or, on the other hand, lack of internal organization and insecurity of companies to republish the content.

“It’s in the dark and there should be light about it. If decisions were clear, platforms would schedule the return of content. It is clear that there is a lack of a procedure for enforcing this provision. But there is no new stage for the platform. Thus, there is the possibility of not returning anything and the intervention of the Electoral Justice, which should be minimal, becomes maximum, without this also being clearly established”, he says.

Censorship of Brasil Paralelo had an end date

Greater clarity occurred in the most evident case of prior censorship, determined by the TSE, last year, involving the documentary producer Brasil Paralelo. In October, accepting a request from the PT, Minister Benedito Gonçalves prohibited the company from promoting and launching, on the 24th, six days before the second round, an episode of the program “Investigação Paralela” that addressed the “theories” about the attack on knife suffered by Jair Bolsonaro in the 2018 campaign. The decision, however, was clear in saying that the ban would only be valid until October 31, the day after the final stage of the electoral dispute.

The film raised the hypothesis that the author of the crime, Adélio Bispo de Oliveira, would have followed orders from a principal, interested in withdrawing Bolsonaro from that year’s dispute. This was never confirmed by investigations, but the idea began to be echoed by Bolsonaro throughout his term to accuse the left of trying to kill him.

Without watching the production, which was not yet finished, the PT said that the documentary had an electoral purpose and could harm Lula. The producer always denied this objective, maintaining that the program only recalled the various suspicions that arose about the case and that the choice of date was given for market reasons, not because of the elections. Even so, the majority of the TSE endorsed the ban on the film being promoted and released before the second round.

Brasil Paralelo appealed. He initially informed that, on his own initiative, he would postpone the exhibition until November, but asked that the possibility of a fine of R$ 500 thousand be removed. The minister denied this, pointing out that the decision also prohibited the company from raising funds through subscriptions and advertising in its films shown on YouTube; and also to promote “any political-electoral content, especially involving the candidates Jair Messias Bolsonaro and Luiz Inácio Lula da Silva, their parties and supporters”.

In November, with the end of all these restrictions, the program about the stabbing of Bolsonaro was finally shown. According to Brasil Paralelo, there was no problem afterwards.