Democracy’s Fixer: Disinformation and the Supreme Federal Court in Brazilian Politics

—Lucas Henrique Muniz da Conceição, Doctoral Researcher, Bocconi University, Milan.

After a tumultuous October, the Brazilian General Elections have come to an end, with President Luiz Inácio Lula da Silva registering approximately 60.34 million votes, representing a tight majority in the electorate (50.9%). Among the political debates concerning the second round of the election was the intensification of disinformation campaigns distributed on social media platforms and the possibility of institutional rupture from Bolsonaro’s resistance to accepting his defeat.

From these political events, one can start to assess some of the consequences regarding the established framework for digital policy, as well as perceive the lessons Bolsonaro might have learned from similar attempts to overcome an election defeat. Much like Donald Trump, Bolsonaro spent his mandate reasserting his electorate manifestations on social media platforms, despite their clear intent to plot an insurrection in case of defeat through a military dictatorship. Although interconnected, both debates may lead to further distinctions in the country’s continuous attempt to regulate social media platforms and the consolidation of a new constitutional dynamic within Brazilian institutional design.

Digital Policy and Tackling Disinformation

The Brazilian approach towards digital policy and internet governance has been strongly engaged with multistakeholderism. Regulatory interventions on the communication technology have become an outcome of extensive participatory debates, with the recognition of specific multistakeholder groups in the administration of policies concerning the internet. This approach is exemplified by the Brazilian Internet Bill of Rights and has also been replicated in the regulation concerning data protection (Law 13.852, 2018), the proposed regulation for “freedom, accountability, and transparency on the internet” (commonly referred to as the “fake news” bill) and the proposed regulation for artificial intelligence (PL 21/2020).

At the same time, with disinformation becoming a significant threat to constitutional stability and the proper functioning of democracy, the multistakeholder framework has been partially surpassed by a more proactive Supreme Federal Court. The Brazilian constitution (art. 96) establishes the prerogative for tribunals to regulate their proceedings and jurisdiction through internal rules, given the constraints of federal procedural law and the constitution itself. This provision maintains judicial bodies’ autonomy and, in the case of the Supreme Federal Court, allows it to define procedures related to, for example, the manipulation of the docket agenda (Arguelhes & Hartmann, 2017) and the investigation of criminal violations within the premises of the court (court bylaws (art. 43). In 2019, the constitutional court established a criminal inquiry into the distribution of fake news against the institution’s credibility and its Justices, broadly interpreting the territorial element in its internal rules of procedure. Later, the judicial criminal inquiry was justified as a mechanism for the protection and maintenance of the stability of the democratic regime (court decision in ADPF 572/2019), constitutionally interpreting its own secondary legislation.

The expansion of powers was put to the test in March 2022, with the court suspending Telegram after continuous attempts to have the platform answer for subpoenas and decisions concerning the removal of users sharing and administrating disinformation campaigns. The decision re-ignited a sensitive debate on the divergent approach towards regulating disinformation and social media platforms, expressing the need for a proper regulation of social media platforms capable of instigating a more sovereigntist solution towards malicious content online (Conceição, 2022). The consideration of the imminent threat to constitutional and democratic stability justifies, according to the court, the enlargement of powers of the Supreme Federal Court, which now positions itself as an institution that protects democracy (Tushnet, 2021).

Concurrently, the Superior Electoral Court established a large-scale multistakeholder project involving platforms, civil society representatives, and public institutions to establish collaborative practices against disinformation during the general election cycle of 2022. This policy led to the definition of multiple co-regulatory agreements between platforms and the Electoral justice, providing expedited procedures for content removal, a direct reference to official channels of communication from the electoral justice, and further collaboration between fact-checking institutions and the platforms themselves.

After the first round of the General Elections on October 2, this dichotomy was somewhat superseded. An assessment of the multistakeholder program efficacy by the Superior Electoral Tribunal demonstrated a 1.671% increase in cases under suspicion of disinformation compared to the 2020 electoral period. Social media platforms removed 57% of the content deemed more pernicious, according to their internal standards and the stipulations in the agreements signed. This underwhelming performance, and the intensification of disinformation, led the Electoral Justice to issue a resolution (Superior Electoral Court Resolution n. 23.714/2022) that, among other provisions, streamlined content removal procedures, expanded the powers of the chief of the Electoral justice, allowed the suspension of platforms in case of non-compliance (art. 5), and submitted overall social media platforms to higher scrutiny. 

As a secondary legislation issued by the electoral justice, the resolution is constrained by the definitions of the federal electoral code and was submitted to a constitutional review claim the day after its publication. In a preliminary summary judgment, the Supreme Federal Court upheld the resolution’s constitutionality, stating the normative act only restrained the massive flow of disinformation hindering the electoral process, engaging with the objectives of the Brazilian constitution and federal electoral legislation (preliminary ruling in ADI 7261/2022), not diverging from the constitutional interpretation of freedom of speech in Brazil.

Bolsonaro and the General Election in Constitutional Politics Dynamics

This turn towards a more strict regulatory approach closely relates to Bolsonaro’s political claim and narrative against constitutional institutions. From the beginning of his mandate, multiple media outlets emphasized the Brazilian former president’s similarity with Donald Trump’s political antics, describing him as the “Trump of the Tropics” for his incendiary remarks and positioning as a political outsider. This comparison was also closely related to the two political figures’ closeness in ideology and political agenda.

Although compelling, stressing the similarities may obfuscate important distinctions in Bolsonaro’s management of his public persona and political discourse throughout his mandate. Bolsonaro started his campaign against the credibility of the electoral system in the first year of his mandate, questioning even the election he had won with a 55% majority. Although not providing proof, he extensively attacked the providence of the electronic voting machine, the structure, and the jurisdiction of the Superior Electoral Tribunal and threatened the independence of the Supreme Federal Court.

In tandem with the Supreme Federal Court’s expansion of powers towards disinformation, Bolsonaro centered his attacks on the court while maintaining an ambiguous position towards the platforms themselves. This strategy was fueled by multiple decisions from the apex court demanding social media platforms to remove the former president’s content and, in some instances, access to his account. Within this systematic, Bolsonaro could enforce his claim that the actual threat to Brazilian democracy is an authoritarian Supreme Federal Court, maintaining a predominantly confrontational relationship between the powers as perceived in other political discussions during his mandate (Bustamente & Meyer, 2022).

This distinction may also relate to the substantial difference regarding the scope and application of the right to freedom of speech in the US and Brazil. While social media platforms’ content moderation is perceived as an affront to the absolutist interpretation of free speech in the American constitutional environment, the rhetoric is not entirely the same in Brazil, where free speech is interpreted in a more systematic manner with a view to balancing it with other fundamental and potentially conflicting values. As such, it is much easier for social media companies to rely on the Brazilian jurisprudence and legal system when adopting more restrictive internal rules concerning user content, also relying on decisions from the Supreme Federal Court affirming their actions.

It is to say, while Trump directly attacked social media platforms for their actions in content moderation, threatening to strike down the liberal approach inscribed in Section 230 and regulate platform governance, in Brazil, the debate is more nuanced. Bolsonaro directs his critique of content moderation directly against the Supreme Federal Court. This follows the president’s attempt to limit platform governance in September 2021  through an executive order (MP 1.068/2021) that was summarily suspended by the constitutional court and later formally rejected by the national congress.

Concurrently, the national congress rejection of Bolsonaro’s attempt to curb content moderation in 2021 followed the results of a Joint Parliamentary Inquiry Committee established in 2019 to investigate cyber-attacks against the Brazilian democracy (CPMI – Fake News), and a Senate Inquiry Committee established in 2021 (CPI – COVID/19) to investigate, among other issues, the use of disinformation in the federal government’s handling of the pandemic. Nevertheless, in the overall dynamics, congressional leaders have maintained support for Bolsonaro’s government on different political fronts, which hindered deliberations concerning the regulation of platforms and online services.

In all, while a more proactive Supreme Federal Court accelerated the regulation of disinformation, Bolsonaro used this to advance his rhetoric that the constitutional court is the authoritarian power within Brazilian constitutionalism, which continues to resonate among his supporters.

Key Takeaways

Regarding the schism in digital policy, the General Elections have highlighted the benefits and limits of diametrically different approaches toward regulating disinformation in social media platforms. A more incisive position by the Supreme Federal Court heightened the political cost of the institution assuming a prominent role in active political debates with substantial outcomes related to both candidates’ campaigns and strategies. This differs from the court’s position during the general elections of 2018, when the court’s judicial interventions focused on corporate campaign finance (Lehmann, 2018) but refrained from adjudicating highly sensitive cases impacting the electoral outcome, such as Lula’s petitions for annulment of his prison sentence earlier that same year.

On the other hand, the co-regulatory approach engaged by the Electoral justice showcased the limitations of platforms’ sensitivities to the stability of the Brazilian election period in a normative landscape where a clear regulatory framework is still being debated in Congress (PL 2630, commonly known as the “fake news” bill). Following the general elections, it must also be noted that the renewed strength of Bolsonaro’s political party, as it maintained relative majorities in both houses and, although still dependent on alliances, represents a deeper political polarisation.

A difference can also be perceived regarding Bolsonaro’s tactics for not accepting the electoral vote results. While constituted powers collaborated to confirm the results with a press conference combining justices of the Supreme Federal Court, the Presidents of the Senate and Chamber of Deputies, and the heads of the Electoral justice, Bolsonaro took almost two days to react publicly and accept defeat. During this time, tensions rose as demonstrations denying the electoral vote results started across the country.

Bolsonaro’s address to the press has not disavowed the manifestations, directly engaging with the protesters only to express sympathy for what he described as indignation towards “this electoral injustice.” As expected, his speech was once again a demonstration of his limited capacity to transition from his role of chief of government towards that of the chief of state. Although initially, officials from his government quickly suppressed any attempts to question the integrity of the election, his party coalition formalised a challenge to the electoral system and the results on November 22, which was rejected by the Supreme Electoral Tribunal the day after.

In all, the Supreme Federal Court maintained its position within the political dynamics, adjudicating requests to suppress the manifestation and issuing a formal statement that constructively interprets Bolsonaro’s address and assigns to his words an acceptance of his opponent’s win. Although an advantageous position during this sensitive period, the consolidation of the Supreme Federal Court in this political dynamic can become a source for further divisiveness between ultra-conservatives and democrats in the country, as a lack of trust in the role and extension of powers of the Supreme Federal Court remains in the zeitgeist of a deeply divided country.

Suggested citation: Lucas Henrique Muniz da Conceição, Democracy’s Fixer: Disinformation and the Supreme Federal Court in Brazilian Politics, Int’l J. Const. L. Blog, Dec. 5, 2022, at: iconnectblog.com/2022/12/democracys-fixer-disinformation-and-the-supreme-federal-court-in-brazilian-politics/