Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Mixed Outcome
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The Brazilian Superior Electoral Court dismissed challenges made to the candidacy of Jair Bolsonaro and his running mate on the basis of newspaper reports of illegal campaign financing. After a newspaper ran a story about private companies’ payments to Bolsonaro’s campaign and the use of mass-messaging tactics – both prohibited by Brazilian electoral law – a coalition of opposition parties challenged the legitimacy of the candidacy, arguing it had committed an abuse of economic power and misuse of media. The Court accepted that disseminating disinformation can lead to the revocation of mandate and suspension of political rights for eight years, but dismissed the applications in this particular case.
This analysis was written by Marco Antonio Costa Sabino, Diogo Rais, and Rachel da Mota.
A few days before the 2018 presidential election, the Brazilian newspaper, Folha de São Paulo, published the following news item: “Companies Pay For Anti-PT Messaging On Social Media.” The PT is the Worker’s Party in Brazil, an opposition party with a candidate running against the Social Liberal Party (PSL)’s Jair Bolsonaro in the presidential election. The report stated that private companies were making donations to Bolsonaro’s campaign, which is illegal under Brazilian current electoral law. The article revealed that these donors purchased WhatsApp user lists to send political messages. The Superior Electoral Court (the Tribunal Superior Eleitoral “TSE”) prohibits contracting automation tools such as mass messaging software.
The case garnered publicity. Initially, Big Tech companies, Twitter, Facebook and WhatsApp, stated that no account belonging to Bolsonaro and the PSL had contracted messaging services. Advertising agencies QuichMobile, Yacows, and SMS Market also denied involvement in the alleged scheme. In addition, Luciano Hang, a businessman named as a participant in the operation, denied any illegal backing of Bolsonaro and said he would sue the Folha de São Paulo newspaper.
The Coalition O Povo Feliz de Novo – a group composed of the PT, the Communist Party of Brazil (PCdoB), and the Republican Party of the Social Order (PROS) – filed two claims before the TSE to challenge the PSL ticket of Bolsonaro and Hamilton Mourão.
Given the claims’ similarity, the TSE heard them together.
The TSE delivered a unanimous decision. The central issue before the Court was whether Bolsonaro’s campaign had violated electoral law.
The Coalition argued that there was an illegal boosting of mass messages via Whatsapp to favor Bolsonaro’s campaign, and the fraudulent use of the name and data of the elderly to register cell phone chips to create accounts on Whatsapp for mass messaging. It also submitted that there were donations from legal entities to the Bolsonaro campaign, the use of robots for message blasting, irregular purchase of user registrations, and the creation of a pyramidal communication structure. The Coalition argued that Bolsonaro and Mourão had abused economic power and misused the media provided for in art. 22 of LC 64/90.
Bolsonaro and Mourão argued that the complaint had no evidence and submitted that the Coalition’s argument was based solely on the Folha de São Paulo article. They submitted that the author of the report, journalist Patrícia Campos Mello, supported the PT, and for this reason, she would have prepared an untrue story against Bolsonaro and Mourão. They denied any corporate donation to the campaign and that any business people made their donations as individuals.
The Court found that the Coalition could not demonstrate a connection between the illegal operation and Bolsonaro and Mourão’s campaign, and found that the evidence provided could not prove that the political mass messaging was decisive in the election of Bolsonaro to the Presidency of the Republic. The Court did accept that promoting disinformation during the campaign can constitute abuse of economic power and misuse of the media.
Accordingly, the Court dismissed the two cases.
Subsequent to these cases, the President of the Court in 2022, Judge Alexandre de Moraes, said that “if there is a repetition of what was done in 2018, the registration will be revoked, and the people who do so will go to jail for attacking the elections and democracy in Brazil”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court has established that disseminating disinformation during electoral campaigns may constitute abuse of economic power and misuse of the media and this empowers the TSE to examine the integrity of electoral campaigns – which concentrates great power in the electoral process in the Court. The dissemination of disinformation has worried public institutions as it has become common in Brazil to broadcast content questioning the security of the voting system and the impartiality of TSE. The Judiciary has interpreted these contents as attacks aimed at destabilizing the democratic order, and seeks to protect the democratic order, which guarantees several rights, such as freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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