Case Summary and Outcome

The Superior Electoral Court of Brazil granted an injunction, requested by then presidential candidate Jair Bolsonaro’s Coalition, to ban the broadcast of a campaign advertisement which was found to be inflammatory and therefore in violation of art. 242 of the Electoral Code. The ad was produced by the Workers’ Party and linked Bolsonaro to the torture undertaken by the Brazilian state during the military dictatorship of the 1970s. While the Court affirmed that the Electoral Code protected political criticism as necessary to the democratic process, the Court found that under the polarized political climate the ad could foment social discord and possibly incite violence. Therefore, the broadcasting of the ad was suspended under a penalty of R$ 50,000.00 for each broadcast violation.

Facts

In advance of the 2018 General Elections in Brazil, the Workers’ Party (Partido dos Trabalhadores, “PT”), which supported the candidate Fernando Haddad alongside “PCdoB” (Partido Comunista do Brasil) and “PROS” (Partido Republicano da Ordem Social), produced a campaign advertisement which linked the Social Liberal Party (Partido Social Liberal, “PSL”) presidential candidate Jair Bolsonaro to the torture undertaken by the Brazilian state during the military dictatorship of the 1970s. The advertisement was broadcasted on October 16 and 17 during the election period, which was marked by extreme political polarization.

The campaign ad featured statements made by Bolsonaro such as “Let’s shoot the ‘petralhada’ in Acre” – referring to members of the Workers’ Party (“PT”) – and “I’m in favor of torture.” It further showed footage of Bolsanaro praising Carlos Alberto Brilhante Ustra, a former colonel in the Brazilian army and head of the secret police of Sao Paulo during the military dictatorship who had been convicted of not only knowing of state sponsored torture but also of participating in it. The video of Bolsonaro’s statements was intercut with torture scenes from the Brazilian movie “Batismo de Sangue” and a voiceover of testimony given by the writer and activist Maria Amélia de Almeida Teles, who was tortured during the dictatorship. In Teles’ testimony, she says that the moment of greatest pain was when colonel Ustra took her two children to see her after a torture session.

In response to the ad campaign, Bolsonaro’s party coalition “Brasil acima de tudo, Deus acima de todos”, composed by the Social Liberal Party (Partido Social Liberal, “PSL”) and the Brazilian Labor Renovation Party (Partido Renovador Trabalhista Brasileiro, “PRTB”), filed an Electoral Complaint before the Superior Electoral Court (“TSE”) requesting an injunction to ban the broadcasting of the advertisement. The Coalition alleged that the content violated art. 242 of the Brazilian Electoral Code, which sets forth that no political party can use advertising to manipulate public opinion, stoke fear or create emotional distress.

Decision Overview

On October 20, 2018, J. Luis Felipe Salomão, delivered the decision of the Superior Electoral Court.

The main issue before the court was whether the advertisement would effectively violate art. 242 of the Electoral Code, which prohibits the intentional manipulation of public opinion to create states of mental or emotional distress (“A propaganda, qualquer que seja a sua forma ou modalidade, mencionará sempre a legenda partidária e só poderá ser feita em língua nacional, não devendo empregar meios publicitários destinados a criar, artificialmente, na opinião pública, estados mentais, emocionais ou passionais.”). The code, however, clarifies that those prohibitions should not prevent “the political criticism that is intrinsic and necessary to the electoral debate which is the essence of the representative democratic process.” (Ac.-TSE, de 23.9.2014, na Rp nº 120133: a parte final deste artigo não impede a crítica de natureza política ínsita e necessária ao debate eleitoral e da essência do processo democrático representative)

Bolsonaro’s Party Coalition argued that the advertisement violated art. 242 of Electoral Code on the grounds that is caused fear in the population by suggesting that if Bolsonaro was elected, he would persecute and torture his political opponents. 

The Court affirmed that previous TSE rulings established that art. 242 of the Electoral Code cannot hinder political criticism, since democratic processes demand a diversity of opinions. However, due to the extreme political polarization which dominated the electoral period of 2018, it was necessary to take the context of the political environment into consideration. The Court found that under the then political climate the ad could foment social discord and possibly incite violence in the population. Therefore the Court ruled that the content of the campaign ad violated art. 242 of Electoral Code.

The Court further found that the torture scenes from the movie “Baptism of Blood” which were incorporated into the advertisement, were subject to restriction. According to J. Luis Felipe Salomão, the Ministry of Justice established that such violent content was not suitable for children and therefore must be age rated for people over 14 years old and only broadcast on television after 9 pm. Since art. 42 of the Electoral Code sets forth that political advertising may only be aired after 8:30 pm, Haddad’s coalition advertisement could not be broadcast during the previously scheduled time.

The Court granted the injunction requested by Bolsonaro’s Coalition, stating that the advertisement was inflammatory and violated the electoral code. Therefore, the broadcasting of the political advertisement was suspended under a penalty of R$ 50,000.00 (for each new time it is broadcast) in case of a violation.