Case Summary and Outcome

The Superior Electoral Court of Brazil, in an administrative inquiry, ordered the suspension of payments from social media platforms to specific individuals and pages disseminating disinformation during the Brazilian elections of 2022. The Court found that this measure does not violate the freedom of expression and the press as it addresses profit incentives rather than content. It also prohibited platforms from suggesting political content through algorithms and compelled platforms to promote reverse tracking of posts to identify the origin of publications. This ruling remained effective throughout the elections and was revoked in March 2023, with no impact on criminal investigations in progress at the Supreme Federal Court and potential new orders to suspend monetization in response to new unlawful events.

Facts

On August 2, 2021, the Brazilian Superior Electoral Court initiated an administrative inquiry into the abuse of social media and money earned through disinformation. An administrative inquiry is distinct from a civil or criminal judicial process, as its purpose is not law enforcement or criminal prosecution, and the Superior Electoral Court is empowered to initiate inquiries when necessary to clarify facts that pose a risk to the legitimacy of elections. The Court works with the police and the inquiry can include the gathering of evidence and other documents, expert examinations and hearings of individuals and authorities.

This inquiry covered various offences including the abuse of economic and political power, misuse of social media, corruption, fraud, prohibited conduct by public officials, and untimely advertising. Later it was extended to include attacks against the electronic voting system and the legitimacy of the Brazilian Elections in 2022. The purpose of the inquiry was not to determine if the internet portals and platforms were responsible for illegality but rather to protect the legitimacy of the elections.

During the investigations, the Federal Police found a network engaged in “the dissemination of false news or intentionally presented information in a biased manner, with the aim of influencing the population on a particular issue … ultimately seeking political-party and/or financial advantages.” [p. 1] On the grounds that the spread of unfounded or fake news on social media about voting system fraud undermines public trust in the electoral process, the Federal Police deemed it necessary to adopt measures “that discourage harmful practices and focus on the objectives pursued by promoters of disinformation, rather than the disinformation itself”, especially considering the limited effectiveness of current fact clarification measures. [p. 2] The Federal Police referred to the  ongoing inquiries 4.781/DF (Fake News Inquiry) and 4.874/DF (Digital Militias Inquiry) initiated by the Supreme Federal Court.

The Police found that the Brazilian model of public campaign financing – coupled with online monetization through social media – “makes effective oversight challenging and creates room for potential abuse of political and economic power.” [p. 2] It referred to a judiciary police report, and identified illicit practices in the case of “dissemination of alleged fraud in the electoral process involving electronic voting machines, with the central figure in this specific case being the President of the Republic, JAIR MESSIAS BOLSONARO.” [p. 2, uppercased in the decision] The Police reported that channels that spoke about alleged fraud benefitted financially as the views of their social media posts increased, which then led to them to share other similar channels to increase their financial gain.

The Federal Police sought measures from the Superior Electoral Court, including instructing major platforms to suspend the transfer of funds derived from monetization services like donations, advertising, supporters, and live streams and for platforms to be prohibited from using algorithms to suggest or indicate other channels and videos of political content—excluding active user-initiated searches for specific content using keywords. The request included directing platforms to trace the origin of posts, identifying the organizer or responsible party and individuals involved in the production and transmission of a live stream conducted on July 29, 2021 by the then-President of the Republic, which disseminated allegations of electoral fraud. The Federal Police also sought information on the sources of disseminated data during the event and individuals who accessed the transmission.

Articles 5, IV of the Brazilian Federal Constitution protects freedom of expression and article 220 protects the freedom of the press.

Decision Overview

The Chief Justice of the Electoral Court, Luis Felipe Salomão, delivered the decision. The central issue for the Court was to determine the extent to which the use of disinformation and attacks on democratic institutions and their financial benefit can limit the right to freedom of expression.

The Court noted that freedom of expression and of the press are not absolute and that transmission of disinformation and attacks on democratic institutions – especially when there is monetary benefit that escalates alongside the severity of the attacks – can limit the rights.

The Court identified two types of channels: pages, and profiles on platforms. It found that some of these channels were operated by individuals who consider themselves “political analysts” and predominantly promote content in a non-professional manner, while others have a structure more similar to press organizations. In respect of the “political analysts” category, the Court emphasized that the right to freedom of expression is not absolute. Citing the judgment ARE ED 891.647 from the Supreme Federal Court, it characterized disinformation as a legitimate limit to freedom of expression, especially in cases involving profit. The Court stated that “[t]he right to criticize, protest, disagree, and freely circulate ideas, although inseparable from the democratic regime, has limitations, for example, in the dissemination of biased or false information and data, or what has conventionally been termed as disinformation.” [p. 6, in italics and bold in the decision] In respect of the channels analogous to the media the Court noted that, in addition to freedom of expression, there is also freedom of the press under Article 220 of the Brazilian Constitution. Referring to the Superior Electoral Court case REspe 413-95/SP, it found that this freedom is not absolute either, and excess should be punished. [p. 6]

The Court described the central event in the Federal Police reports as a live stream in which then-President Bolsonaro discussed alleged frauds in the electoral process involving electronic voting machines. It found that these unproven claims were disseminated and reiterated by channels benefitting financially based on the number of views. Quoting the Police report, the Court highlighted that “[t]he more controversial and confrontational the message is to institutions, the greater the impact on the number of views and donations” which then, because it reached a larger audience, resulted in “increasing polarization and generating instability by fuelling suspicion of the electoral process, while simultaneously advancing the 2022 campaign through social media.” [p. 7]

The Court confirmed that most of the content reported by the Police was not the dissemination of legitimate criticism or suggestions to improve the electoral process, “but rather the promotion of accusations and fake news about fraud in the electronic voting system” which had been “exhaustively refuted due to their manifest lack of merit.” [p. 7] It added that those responsible for the pages and channels “not only know each other but also support each other, as they often mention or reciprocally replicate content”, and found indications of the existence of “a vast, organized, and complex network to negatively impact political discourse and stimulate polarization, focusing on electronic voting machines, and ultimately serving political-party interests that need to be further elucidated.” [p. 9]

The Court stressed that the investigations showed constant attacks on the Superior Electoral Court and the Supreme Federal Court, “attributing illegal and conspiratorial practices to these organs, without any factual basis, with fanciful accusations disconnected from the reality of the facts.” [pp. 9-10] It found that the monetization process based on the number of views of the pages leads the individuals under investigation to further attack institutions and the electoral system, as they will gain more financially. It found that “[q]uestioning institutions without any concrete basis, casting doubt on the security and reliability of electronic voting machines, attacking the image of the Electoral Justice – undermining the public’s trust in institutions – and ultimately, acting to compromise the foundations of democracy, seem to have become a genuine way to obtain money. The deleterious effects of this practice are evident.” [p. 10]

Accordingly, the Court supported the recommendations by the Federal Police, leading to the suspension of payments on social media platforms to individuals and pages involved in spreading disinformation. It held that this action does not infringe freedom of expression since it does not restrict content but only the financial gains from posts. The Court also prohibited platforms from suggesting political content by algorithm, permitting such suggestions only through user-initiated searches. This measure aimed to “prevent the channels, profiles, and pages subject to the inquiry from continuing to mutually reinforce each other, interrupting the spread of disinformation.” [p. 12] It also ordered measures to enable reverse tracking for posts to determine their origin, and added that these do not apply to channels, pages, and profiles maintained by public authorities operating in the political scene “because such tools are related to the exercise of their functions”, and did not identify offensive acts against democracy and the electoral system in this case. [p. 12]

On March 1, 2023, after the 2022 elections, the Court revisited this decision because the purpose of this inquiry was to ensure the regularity of the elections. Justice Benedito Gonçalves delivered the decision and found that this administrative inquiry did not aim to “establish judgment on the responsibility of the channel owners, which should be investigated in the appropriate instances” and that it “has an administrative nature and a scope limited to preserving the normalcy and legitimacy of the 2022 Elections.” [p. 10 of the 2023 decision]

The Court acknowledged that antidemocratic and conspiratorial attacks persisted after the election, citing the “acts of terrorism” that occurred on January 8, 2023, when the three branches of the Brazilian republic were attacked in Brasília. It explained that “[t]he events unfolded rapidly, demonstrating more and more the decisive influence of promoters and disseminators of disinformation content on the internet, ensuring the speed of information spread, encouraging the population to join the regrettable events.” [p. 11 of the 2023 decision] It stated that that the actions of Brazilian democratic institutions contributed to the restoration of the “state of normality in the country.” [p. 11 of the 2023 decision]

Accordingly, that Court revoked the previous decision “specifically to allow the use of monetization tools, following each platform’s rules, by the profiles and channels under investigation”. [p. 11] The Court stressed that the decision does not influence criminal investigations related to the practice of antidemocratic acts in the inquiries of the Supreme Federal Court (STF) and does not prevent competent authorities from ordering a new suspension in the case of new illicit activities.