—Gustavo Buss, Master of Laws UFPR, & Estefânia Maria de Queiroz Barboza, Professor of Constitutional Law at UFPR and Uninter
The last few years have provided concrete examples of how the political discourse has occupied new corners of the digital arena. The internet has allowed big players to set forth their social media platforms. Furthermore, those platforms have allowed independent channels to operate of their own volition. Within their “bubbles,” such groups find new and uncontrolled territory from where they can disseminate manipulated information. For this reason, the digital revolution has provided a severe threat to constitutional democracy by creating an arena where political power can maximize its authority with little to no accountability.
As the international community became aware of the problem and its implications, a particular term gained widespread recognition: fake news. However, despite its merits in highlighting the issue of falsehoods being branded as news, the concept’s vagueness rapidly revealed an obstacle. Any opponent who found themselves at odds with a particular story or news outlet could comfortably shout out “fake news” to discredit the disliked information. “Fake news” became synonymous with “every story has two sides.”
A better definition can be advanced through the concept of disinformation. Firstly, it better showcases what falls within its scope, including any false, manipulated, or misleading information. Additionally, it is associated with a political propaganda strategy that benefits from the uncontrolled digital arena to challenge the rule of law, democracy, and fundamental rights. It is of utmost importance to comprehend that the widespread dissemination of disinformation through digital platforms is not merely accidental but a premeditated act. For the same reason, it requires a concrete constitutional response.
In Brazil, the threat of disinformation propaganda became particularly intensified with the election of President Jair Bolsonaro. During his campaign, in the critical days preceding the elections, WhatsApp groups saw an abrupt increase in false and misleading messages promoting Bolsonaro and denigrating his opponents. As a result, the Brazilian electoral courts, whose primary attribution is to protect the democratic electoral system, intensified their efforts to fight against the emergent issue of disinformation. For the 2020 municipal elections, the Superior Electoral Court of Brazil had signed partnership agreements with 48 public and private institutions, including major social media platforms, to increase content moderation and limit false or misleading propaganda.
The effort from judicial actors to undermine Bolsonaro’s network was not met with passive acceptance. The President attempted to respond to the restraints imposed by major platforms to his propaganda efforts by issuing, in 2021, a provisional measure obstructing social media from removing content found to violate community standards, which was later overruled by the Senate. Moreover, the scenario described has recently become even more aggravating as the new rhetoric of the attacks began to aim directly at the electoral courts. Thus, in the wake of a new presidential election in 2022 and with Bolsonaro trailing at the polls, the newfound enemy shifted towards the democratic election itself and his sworn protector.
The menace is real, despite the significant effort taken by major platforms to implement new measures of content moderation. There are still outlets that refuse to fortify control. In the Brazilian context, Telegram has emerged as the new stronghold for right-wing supporters of Bolsonaro. Moreover, the lack of strict governance mechanisms has rendered its content moderation inconsistent and not very transparent. In this sense, users have felt free within the platform to share anything, knowing that they cannot be held responsible as long as Telegram remains uncooperative with national authorities. At the same time, this has created a niche for the platform to sell itself as the only social media free of control, increasing its appeal within that community from which it does not wish to depart.
A new controversy has recently arisen as Luis Roberto Barroso, head of the Brazilian Superior Electoral Court, threatened to ban Telegram from the country if it refuses to cooperate with electoral authorities. It is a firm stance, but it is not an isolated example. The German government has also been pressuring the platform to remove extremist content and implement content regulation, going as far as to consider a ban on the encrypted messaging app. So the question posed is: are there constitutional grounds for shutting down Telegram?
The response must begin with a necessary reassessment of constitutional sovereignty. In a pre-digitalized world, the State’s preeminent element of authority emanated from its territorial borders. Therefore, the act of governance meant exercising power to regulate life within such frontiers. However, the internet has demanded a redefinition of sovereignty, a concept already being challenged by globalization. From a classical territorial perspective, it is impossible to assert where the digital platforms begin and where they end; they are everywhere and nowhere at the same time. Consequently, governing over the digital territory renders public authority impotent as the private sector centers power in their hands, mainly because they are the sole coders of the artificial arenas they create.
For the public authorities concerned with constitutional obedience, the remaining possibilities are limited to two axes of regulation: (i) controlling the people who use the platform; and (ii) controlling the actors in the hierarchical framework of the platform’s domain. Within the first one, despite the efforts to criminalize any deviant conduct, Telegram’s encryption and privacy impede attempts to identify perpetrators without their express cooperation. Hence, the only viable alternative is to regulate the enterprise itself, compelling it to abide by the rules.
As previously stressed, sovereignty in the digital era is challenged by the Internet’s lack of strict territoriality. An international enterprise often holds the platform, and its domain is harbored anywhere in the world. Telegram, for example, operates in Brazil without any legal representation. In this context, the exercise of governance becomes a challenge given the impossibility to enforce oversight over the digital arena. It becomes even harder to attempt compliance if there is no legal representative for the platform in the country who can conform to its legislation and judicial decisions.
Therefore, a ban on Telegram is justified as an extreme act to safeguard the integrity of the electoral procedure. If freedom cannot be used as an excuse for violating the law, it cannot be used to safeguard a deregulated platform in which the law is being actively violated. When Telegram allows the far-right supporters of President Bolsonaro to disseminate disinformation purposefully, it becomes a preeminent electoral actor subject to necessary oversight and accountability. Furthermore, as its position reveals a refusal to cooperate with public authorities, mainly the Brazilian Electoral Justice, a proper response becomes indispensable. Otherwise, refusing to take action could put in jeopardy the constitutional integrity, and democratic continuity altogether.
The disinformation uttered on Telegram by Bolsonaro and his supporters stands for civil disobedience and electoral distrust. If the Constitution demands democratic stability, the answer to the digital threat of disinformation must precede its ultimate goal of democratic dismantling. Accepting the platform’s refusal to cooperate without concretely impeding the threat identified is an inadmissible recognition of the judicial incapability to impose constitutional compliance in the digital arena. Therefore, the answer given by the Brazilian Superior Electoral Court is the only available alternative for enforcement of electoral regulations. In light of Telegram’s intransigent position, banning the application during the electoral process becomes not only justified but necessary.
Suggested citation: Gustavo Buss & Estefânia Maria de Queiroz Barboza, The Telegram Conundrum in Brazil, Int’l J. Const. L. Blog, Feb. 23, 2022, at: http://www.iconnectblog.com/2022/02/the-telegram-conundrum-in-brazil/
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