Case Summary and Outcome

The Brazilian Superior Electoral Court ordered the removal of false information from a presidential candidate’s campaign publications. After presidential candidate Jair Bolsonaro accused his opponent of distributing a “gay kit” in schools during his time as Minister of Education, a coalition of opposition political parties approached the court, seeking the removal of that information and requesting a right of reply. The Court accepted that the information was false and so ordered its removal, but found that the politician had had sufficient opportunity to respond and so denied the request for a right of reply. 

This analysis was written by Marco Antonio Costa Sabino, Diogo Rais, and Rachel da Mota.

Facts

In 2018, then-Brazilian presidential candidate Jair Bolsonaro repeatedly referred to a non-governmental project titled “School without Homophobia” project as a “gay kit” in discussions about his opponent, Fernando Haddad, of the Worker’s Party (PT). The project consisted of material for teachers based on the guidelines of the Ministry of Education of Brazil (MEC), the Ministry of Human Rights, and UNESCO, and was part of a the broader non-governmental initiative, “Brazil without Homophobia”. Bolsonaro alleged that during Haddad’s tenure as Brazilian Minister for Education he had purchased and distributed the book “Aparelho Sexual e Cia”, which claimed to teach masturbation to children and to make LGBT supporters. Haddad had never implemented the “School without Homophobia” and had never intended to buy and use the book  “Aparelho Sexual e Cia” in schools.  

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) – brought an application to the Superior Electoral Court (the Tribunal Superior Eleitoral “TSE”) requesting the removal of Bolsonaro’s publications and the right of reply.

Decision Overview

On October 15, 2018, Justice Carlos Horbach delivered the judgment of the TSE. The central issue for determination was whether the information Bolsonaro published was false, and if so, what the remedy should be.

The Court held that there was enough evidence to establish that the “School Without Homophobia” project was never implemented, and that Haddad never made the purchase order for the “Aparelho Sexual e Cia” book.

The Court found that Bolsonaro’s publications were intended to discredit the honor and image of Haddad. The Court ordered the removal of the content based on electoral legislation. The Court sought the registration data and IP protocol of those responsible for the publications to Google and Facebook.

However, even if the defamation of the Haddad was found, the Court denied the right of reply. It found that Haddad had already commented on the matter and so had clarified that the “School Without Homophobia” program was not carried out during his tenure. The Court held that this meant there was no need for further clarification.