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How Brazil’s electoral court took action against Bolsonaro’s fake news campaigns

Targeted disinformation campaigns on social media were key in getting Brazil’s far-right President Jair Bolsonaro into power in 2018. A law professor explains how the Superior Electoral Court took action to prevent him from manipulating the 2022 vote.

Jair Bolsonaro Brazil

Brazil’s far-right President Jair Bolsonaro has often been described as the “Trump of the tropics,” in reference to the former leader of the United States. But this has led to superficial comparisons between the two countries.

It is true that the Bolsonaro family and members of Steve Bannon’s ultra-conservative “Movement” have worked together closely, and social media disinformation tactics were imported from the US and became a key factor in Bolsonaro’s 2018 electoral victory.

However, Brazil’s electoral system is completely different. Many things that are legal in US elections – especially regarding campaign funding – are considered election fraud under Brazilian law.

In Brazil, the results of the October 30, 2022 presidential election were tallied in just under four hours, whereas the United States needed more than a week to finalize the results of its November 8 mid-term elections.

Brazil has an independent national electoral court system, which was established in 1932, and which oversees all steps of the electoral process, including by auditing elections and investigating and punishing fraud.

The 2018 Brazilian presidential elections showed that the regulatory mechanisms controlled by the electoral courts were too slow to act effectively in the social media age.

Despite dozens of allegations of fraudulent, illegally funded social media campaigns that spread micro-targeted disinformation against the Workers’ Party 2018 presidential candidate Fernando Haddad, it took three years for the Superior Electoral Court to reach a judgement on any of them.

As Brazil’s six-week election season began in August 2018, the court began ordering US social media monopolies to pull electoral disinformation – from both the Bolsonaro and the Lula camps – off of their platforms. However, the 48-hour compliance time, based on laws that were created during the newspaper and TV age, did nothing to stop false stories from going viral.

Then, after the first round vote on October 7, 2018, the Superior Electoral Court passed a law reducing compliance time to two hours. At this moment, prominent members of Brazil’s US-connected far right cried “censorship.”

But does this complaint apply in Brazil, which has a different legal conception of the right to free expression?

In the following interview, Federal University of Pernambuco law professor Liana Cirne, a Workers’ Party councilwoman in the city of Recife, evaluates the effect of the electoral courts on the 2022 elections.

Liana Cirne Brazil

Brazilian law professor and city council member Liana Cirne

BRIAN MIER: Could you please explain the differences in the role of the Superior Electoral Court system during the 2018 and 2022 presidential elections?

LIANA CIRNE: It was very big and noticeable. It looks like the Electoral Court felt the impact of the Supreme Court’s inquiry on digital militias and fake news. This caused them to pay more attention to coup plotting and threats against democracy.

The role of the electoral courts in 2018 was radically different from this election. In 2018, it collaborated with the coup through rulings which attacked our democracy. One of these was the decision to bar Lula’s candidacy.

Another ruling blocked ex-president Lula from giving any interviews, which constituted an act of prior censorship. It ruled, for example, that Lula’s name couldn’t appear in any electoral campaign materials.

In 2018, the Workers’ Party was forced to recall stickers and pamphlets that had Lula’s name in them.

So there were actions taken by the courts which had the electoral goal of preventing one of the candidates from being elected.

In 2022, after four years of the Bolsonaro government constantly threatening institutional normalcy, threatening the regular functioning of government institutions, and, especially, constantly threatening the judiciary, it looks like the Electoral Court recuperated the nature of its role and functions and became more vigilant, including with itself.

It moved slowly. It is important to remember that the Workers’ Party filed a motion to cancel Bolsonaro and Mourao’s electoral victory in 2018 that was only deliberated on in 2021, in a ruling that recognized the illegal use of fake news in the elections, that this use of fake news had an important influence on the results of the election, and, even so, didn’t stipulate any punishment. They only issued a warning that these tactics would not be allowed in the 2022 elections.

Nevertheless we saw that the court was slow in restricting certain sites and social media accounts, including those of politicians and right-wing extremist sites from spreading disinformation.

This certainly had some kind of impact in our elections and, at least, shortly before the second round elections, the electoral court was able to bar certain sites from pushing fake news on social media. It barred the launching of fake news.

It wasn’t enough, and it wasn’t done in an adequate time span, but in the end, the court performed its role as an auditor of the electoral process.

BRIAN MIER: What was the relationship between these sites that were barred from broadcasting content at the end of the election season, such as Brasil Paralelo, with the Bolsonaro campaign?

LIANA CIRNE: Brasil Paralelo is not simply a website. It is a content producer. I call Brasil Paralelo the Netflix of the Brazilian far right. It is a high-quality production company. Its documentaries and series are very well produced and well written.

The problem is that they engage in historical and political revisionism, and they use a very dangerous trick, which has been explained in documentaries like The Great Hack and The Social Dilemma. They attract the curiosity of average, slightly conservative citizens and gradually radicalize them until they are entirely conditioned into the ideology of the far right.

The existence of Brasil Parelelo is very dangerous here. It is clear that, to the extent that it builds an audience of people indoctrinated into right-wing extremist ideology, it is an indirect but very effective way to campaign for Jair Bolsonaro.

The Court barred Brasil Parelelo from releasing one episode of its series Investigação Paralela. It had already released an episode about the assassination of Marielle Franco that completely exonerates any possibility of the Bolsonaro’s involvement – something we know that exists because people connected to the assassination worked in Flavio Bolsonaro’s state congressional cabinet, because one of the killers was a neighbor of Bolsonaro and he had a functional relationship with the Bolsonaro family.

But there was another episode that they had planned to release before the final election called, “Who ordered the killing of Jair Bolsonaro?” It was going to air on the eve of the election.

The idea was to cover the incident – which some people contest – of the Bolsonaro stabbing, or supposed stabbing in 2018 in order to create a commotion and a radicalization of his supporters.

It was very important to delay the launch of this episode and block Brasil Paralelo from promoting content, during the final lead-up to the election.

It’s important to point out that Brasil Paralelo was the company that spent the second-largest amount of money on online advertising in Brazil during the election season, trailing only the Meta corporation.

It spent more on online advertising than the Bolsonaro campaign itself.

BRIAN MIER: Do you think that this and other similar actions taken by the Superior Electoral Court had any significant effect on the elections?

LIANA CIRNE: I think it had an impact, a cleansing impact. It’s very important that people can choose their candidate based on correct information and not on disinformation.

Everything that can erroneously or wrongly affect an election result should be prevented and stopped by the electoral court.

We don’t really know how to measure what the impact would have been if paid content promotion of fake news had been allowed to continue freely, but we suppose that the impact, in a race that was as close as this one, may have been enough to alter the result of the election.

We can’t say for certain, but we can imagine that this disinformation could have affected the election result.

BRIAN MIER: The Brazilian right has imported some of the arguments from the US right about freedom of speech to refer to these regulatory actions by the Superior Electoral Court as a form of censorship. Why doesn’t this argument apply here, within the context of Brazilian law?

LIANA CIRNE: Freedom of expression is a fundamental right that is guaranteed by our constitution, but like all other fundamental rights, it is not an absolute right. Therefore it has to be taken into consideration together with other fundamental rights. Rights coexist. The essential core of all rights fit together so they can coexist harmoniously.

What does this mean? There is no right that is so absolute that it can pass over other rights. Rights have to be guaranteed to their essential core.

The right for people to express themselves exists, but is there a right to lie? No, especially when the goal of this lie is to defraud an election, which is another fundamental right.

The election is the core of freedom in a system such as ours, in which we elect our representatives.

Is there a right to express threats? No. So rights have to be guaranteed in their essential core.

Freedom of expression is a very important right, but you can’t use this right to suppress other rights. This is the balance that we need to strive for under the democratic rule of law.

1 Comment

1 Comment

  1. Roy

    2022-11-17 at 12:20

    “Many things that are legal in the US”

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