Case Summary and Outcome

The Brazilian Supreme Court found that a Resolution issued by the Superior Electoral Court to address fake news during the electoral period was constitutional, holding that the electoral judiciary may adopt regulatory measures to protect the integrity and normality of elections in the digital environment. The Office of the Prosecutor-General had challenged the Resolution on the grounds that the Electoral Court had exceeded its authority. The Court found that ensuring electoral legitimacy, preserving access to reliable information, and preventing manipulative digital practices are responsibilities assigned to the Electoral Court by the Constitution, and that the Resolution falls within this institutional role. It also emphasized that freedom of expression during elections operates within the constitutional requirement that electoral outcomes remain protected from the abusive influence of economic power, and that the resolution functions as a means of safeguarding this condition. Although one Justice expressed concerns about the scope of certain enforcement mechanisms and voted for a partial finding of unconstitutionality, the majority of the Court maintained the resolution in full.

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Facts

During the October 2022 elections in Brazil, the Superior Electoral Court (TSE) passed Resolution No. 23.714/2022 to address the spread of disinformation that could undermine the integrity of the electoral process.

On October 21, 2022, the Brazilian Office of the Prosecutor-General (PGR) brought a Direct Action of Unconstitutionality (ADI) before the Supreme Federal Court (STF) to challenge several provisions of the Resolution. The PGR was concerned that the resolution introduced mechanisms not grounded in federal electoral legislation and that the Electoral Court had exceeded its regulatory authority by establishing new prohibitions, sanctions, and investigative procedures that, in its view, can only be created by law.

The PGR felt that one of the central problems in the Resolution was Article 2, which states: “It is prohibited, under the Electoral Code, to disseminate or share facts that are knowingly false or gravely decontextualized and that affect the integrity of the electoral process, including the voting, counting, and tabulation of votes.” The PGR was also concerned with Article 4 which authorized the temporary suspension of existing social-media profiles, describing this as a measure it considered incompatible with statutory limits and one that could function as a form of prior restraint. It believed that the provision risked restricting legitimate political criticism and access to information during the election.

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Decision Overview

Justice Edson Fachin of the STF served as the rapporteur. Judge de Moraes delivered a concurring opinon and Judge Mendonça delivered a partly concurring and party dissenting opinion. The central question before the Court was whether the TSE acted within the boundaries of its constitutional and statutory authority when it adopted the Resolution, considering the guarantees of freedom of expression, the requirements of electoral legitimacy, and the principles governing the electoral justice system.

The PGR challenged the substantial increase in fines for violations of electoral advertising rules, noting that the resolution set sanction levels not provided for in federal law. It also objected to the provision, in Article 3, allowing the President of the TSE to extend specific judicial determinations to other cases involving “identical content”. In its view, this mechanism granted the Court’s President the authority to replicate the effects of a prior ruling without new deliberation by the full bench, thereby concentrating decision-making power in a single authority. The PGR argued that such an extension procedure departs from the principle of collegial review that ordinarily governs electoral adjudication and may generate uncertainty about the scope and limits of judicial orders in the digital environment.

The TSE defended the validity of the Resolution and maintained that it acted within its constitutional authority to regulate the electoral process and protect the integrity of elections. It argued that the rules targeting the dissemination of false or gravely decontextualized information were intended to protect the regularity of voting, counting, and the public’s confidence in electoral institutions and explained that the measures adopted, including procedures for content removal, limits on coordinated disinformation, and adjustments to sanctions, were necessary responses to the scale, speed, and organized nature of online violations observed during the electoral period. The TSE submitted that its regulatory authority includes the power to oversee electoral advertising, address unlawful conduct, and adopt preventive and corrective measures necessary to ensure free and fair elections. It maintained that the Resolution did not substitute federal legislation but operated within the boundaries of its mandate to implement and give practical effect to statutory rules in the electoral context.

Justice Fachin emphasized that the Resolution “concerns the dissemination of false information through digital media and the internet, rather than establishing a regulatory framework for traditional media or other communication outlets”, a distinction he considered relevant to understanding the TSE’s role in the digital environment. [p. 10] The Judge then highlighted the practical obstacles posed by online disinformation during the electoral period, noting that “there is a gap and a mismatch between the moment the fact becomes known and the moment its content can be removed (‘notice and take down’)” [p. 10]. That gap, he observed, becomes particularly harmful when false or anonymous accounts amplify the circulation of disinformation “in a clear abuse of power,” thereby increasing the vulnerability of the electoral process. [p. 10] For this reason, Judge Fachin concluded that “while the reaction time is short, the potential harm to the integrity of the electoral process is immeasurable”, a circumstance that, in his view, justified the adoption of more agile mechanisms during the limited time frame of an election. [p. 10]

In examining how the Resolution relates to a set of constitutional principles, Judge Fachin noted that the rules adopted by the TSE must be read in harmony with the Constitution – particularly political pluralism (art. 1, V), freedom of expression (art. 5, IV), the autonomy of political parties (art. 17), and the broader constitutional commitment to freedom as a structural value. He also referred to Article 14, paragraph 9, which establishes grounds for electoral ineligibility, and stressed that the exercise of these freedoms during an election must preserve “the normality and legitimacy of elections against the influence of economic power.” [pp. 10–11] Accordingly, Judge Fachin stated that an electoral process shaped by the abusive use of economic power cannot be considered normal or legitimate: “an election influenced by the abusive exercise of economic power is neither normal nor legitimate; in other words, it is not free or democratic” [p. 11] [in bold in the original].

Justice Fachin also drew on contemporary analyses of information disorder, referring to the work of Byung-Chul Han (“Infocracy: Digitization and the Crisis of Democracy”, 2022) to describe how digital environments marked by automation, acceleration, and opacity can distort public debate. He explained that when such abuses take shape within the informational sphere – “suppressing truth and composed of false data and fabricated lies designed to extract electoral consent” – freedom becomes trapped within what he called a “digital cave,” producing the illusion of autonomy (in bold and italics in the original). [p. 11] In his words, however, “one is not free when chained to the digital screen, and these new prisoners of the Platonic cave remain ‘intoxicated by mythical-narrative images,’” a formulation he used to argue that disinformation can erode the conditions that make democratic self-government possible. [p. 11]

Addressing the PGR’s argument that the matter should be regulated by Congress, and not by the Electoral Court, Justice Fachin acknowledged that legislation concerning fake news is currently under consideration in the National Congress. He noted, however, that “the bills under discussion have not yet been deliberated upon and therefore do not form part of the applicable legal framework.” [p. 13] For that reason, he concluded that electoral authorities cannot rely on future legislation to confront practices that threaten elections already underway, and so the TSE must apply the legal framework currently in force, including its own normative resolutions, so that the courts can respond adequately to conduct that may compromise the integrity of the electoral process.

Judge Fachin examined the substantive risks posed by false information during the compressed timeline of an electoral campaign and noted that fake news can “occupy the entire public space, restricting the free circulation of ideas,” and that such content “must be combated” whenever it has the capacity to interfere with the electoral process. [p. 15] He emphasized that the intentional use of vague, incomplete, or false messages aimed at manipulating voters poses a direct threat to electoral integrity. In this regard, he referred to Tutela Provisória Antecedente No. 39, in which the Supreme Court upheld the TSE’s decision to revoke the mandate of a state legislator who had disseminated false claims about Brazil’s electronic voting system and promoted personal and partisan propaganda on election day. In that case, the Court stated that “there is no fundamental right to disseminate fake news or anything of that sort”, a principle that, in Judge Fachin’s view, situates such conduct outside the constitutional protections of free expression. [p. 16]

Judge Fachin referred to ADPF 572/DF, in which the Supreme Court upheld the legality and constitutionality of the “Fake News Inquiry,” an investigation created to examine the circulation of fraudulent news, defamatory accusations, and threats directed at the Court, its justices, and their families and to the U.S. Supreme Court’s decision in Packingham v. North Carolina, which described social media as “the modern public square.” Building on these references, Judge Fachin observed that contemporary digital environments often operate within a “state of informational confusion in which expression becomes automated,” a condition in which there are no longer fully identifiable subjects of rights but rather “algorithms inadvertently echoing information without any grounding in the logic of hypertext.” [p. 19] He explained that this diagnosis demonstrated the need for regulatory tools capable of responding to the dynamics of digital communication and protecting the conditions for meaningful public debate.

Justice Fachin rejected the PGR’s claim that the Resolution instituted censorship. He explained that the form of judicial control created by the TSE operates ex post (after the fact) and is limited to the electoral period and emphasized that the Resolution does not authorize the suspension of internet providers or messaging services; rather, it focuses on accounts and channels whose publications may “affect the integrity of the electoral process,” a protection grounded in the Brazilian Constitution. [p. 24] Judge Fachin concluded that “there is no – nor could there be – any imposition of censorship or restriction on any media outlet […] What the resolution seeks to prevent is the use of virtual personas and the concealment provided by social networks in order to turn this space into a vehicle for the dissemination of false information capable of impacting the elections and the integrity of the electoral process” (in bold in the original). [p. 24]

Justice Alexandre de Moraes concurred with Judge Fachin and emphasized that both freedom of expression and political participation in a representative democracy require conditions that allow citizens to express themselves openly and to scrutinize those who hold public authority. Drawing from his own opinion in ADI 4451/DF, he recalled that democratic debate is strengthened when individuals can articulate and confront a broad range of views about government officials. As he stated in that earlier case, “they are strengthened only in an environment of full visibility and of open critical exposure to the widest range of opinions about those who govern.” [p. 40]

Judge de Moraes noted, however, that recent electoral cycles in Brazil and abroad have exposed a troubling trend in which false information is deliberately and strategically disseminated to compromise the integrity of elections and this type of operation exploits the architecture of digital platforms in ways that weaken public trust and unsettle the democratic institutions responsible for ensuring fair and legitimate electoral outcomes. [p. 41] In this context, Justice de Moraes reaffirmed a position he has expressed in other rulings, that freedom of expression is not a license to attack individuals or democratic institutions. A democratic society, he explained, cannot tolerate calls for unconstitutional measures or attempts to legitimize authoritarian acts: “freedom of expression is not freedom to engage in aggression,” and it cannot be invoked to justify narratives that distort electoral reality or deprive voters of their ability to make autonomous choices. [p. 41] He added that “we are not living in a jungle,” a remark aimed at rejecting efforts to cloak anti-democratic actions under the mantle of protected speech. [pp. 41-42]

Justice de Moraes described the Resolution as a tool of democratic self-defense, noting that its central purpose was to ensure that the Electoral Court can respond effectively to the speed and viral nature that characterize online disinformation. He therefore viewed the Resolution as a legitimate instrument for protecting the electoral environment against systemic manipulation, serving broader constitutional goals such as the stability of the democratic process, the sovereignty of the people, and the integrity of the electoral result by preserving the normality and legitimacy of elections. [pp. 42-45] Justice de Moraes emphasized that the measures adopted by the Electoral Court aimed to safeguard the conditions necessary for free, fair, and peaceful elections. By targeting practices that intentionally distort reality and undermine institutional trust, he concluded that the Resolution serves to protect the democratic process from digital manipulation capable of compromising electoral legitimacy. [p. 46]

Justice André Mendonça agreed in part with Judge Fachin but issued a separate opinion outlining several concerns about how the Resolution structures sanctions in the digital environment. He emphasized that efforts to address abuse of speech, fake news, and hate speech do not justify excluding individuals from social or political life and stated that the State should focus on responding to unlawful conduct through ex post accountability while preserving the principle that, in sanctioning law, judgment is directed at behavior rather than at the person: “the judgment concerns the conduct, not the individual,” and any regulatory approach to digital harms should aim to curb deviant acts without erasing the identity or presence of the speaker. [p. 54]

Judge Mendonça agreed that the PGR raised a legitimate point in noting that certain provisions of the Resolution may approach the territory of prior censorship, for example, that suspending an entire user profile or restricting access to an entire digital platform on the grounds of “systematic dissemination of disinformation” or “reiterated noncompliance” prevents any future expression from that account or service. Such measures, in his view, block all speech to avoid the possibility of further violations – “the possibility of any expression is cut off” – a logic he considered incompatible with the central role that freedom of expression occupies in the Court’s precedents. [p. 54]

Justice Mendonça then revisited the place of freedom of expression within the constitutional system, drawing on precedents such as ADI 4815/DF, ADPF 130/DF, ADI 4451/DF, and ADPF 403/SE to illustrate how firmly the Court has positioned this right at the center of democratic life. These decisions, in short, affirm that any measure capable of restricting political expression requires careful and proportionate justification. From this perspective, he treated the Resolution as deserving scrutiny, since it touched the heart of the fundamental right and introduced constraints that could not be accepted without a more robust constitutional rationale. He also remarked that framing contemporary politics through a sharp divide between “communicative” and “digital” rationalities oversimplifies how citizens actually engage with public life as civic consciousness and political participation have, in many settings, expanded through digital technologies, which complicates narratives that treat the online sphere only as a source of democratic decline. This point led him to revisit the pessimistic accounts associated with Byung-Chul Han – also cited by Justice Fachin – who describes digital society as an “infocracy” or a form of “post-digital democracy” in which politics would dissolve into algorithmic management. Therefore, for Justice Mendonça, such deterministic interpretations ignore the democratic possibilities opened by digital sociability and therefore cannot, by themselves, justify the restrictive effects produced by the Resolution. [p. 63]

On the broader normative issues, Justice Mendonça noted that the scope of the TSE’s authority to define “fake news” deserves careful, collective reflection as, if applied to its full extent, the discretion implied by the Resolution could make legislative initiatives such as Bill No. 2630/2020 (the bill currently under debate in Congress that seeks to regulate disinformation and platform governance) largely unnecessary. For him, rules of this breadth fall primarily within the role of Congress, and judicial regulation should take care not to replace ongoing legislative debate. [p. 65] In this context, he commented that nothing in his opinion, nor in the PGR’s submission, should be interpreted as a claim for a “fundamental right to attack democracy” or a “right to spread falsehoods.” [p. 73] Both positions, he noted, fully acknowledge the need for State action against fake news and recognize that disinformation can distort the electoral process and so the disagreement concerns “the appropriate way to achieve these objectives,” rather than the objectives themselves. [p. 73]

Justice Mendonça would have found that Articles 4 and 5 of the Resolution were unconstitutional as Article 4 authorizes the temporary suspension of user accounts identified as habitual disseminators of fake news and Article 5 allows the Electoral Court to impose restrictions on entire platforms that repeatedly fail to comply with judicial orders. In his view, these mechanisms create disproportionate constraints on expression and operate in a manner close to prior restraint, since they suppress all future speech from an account or service in order to avert the possibility of new violations. He therefore voted to strike down these two provisions while accompanying Judge Fachin on the remaining aspects of the case.

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