On May 31, 2022, Federal Supreme Court Justice Alexandre de Moraes, who will head the Superior Electoral Tribunal (Tribunal Superior Eleitoral, TSE) when Brazil’s general elections are held on October 2, 2022, was quoted as saying that the TSE may revoke the registration of candidates who share false information about electoral disputes on social media. Moraes made the statement during the closing of an event held at the TSP on the election in Brazil and the electronic voting system. The event was attended by representatives from 68 countries, members of the United Nations Development Program (UNDP), and Electoral Transparency Brazil.
Moraes further mentioned that previous decisions of the TSE will enable the tribunal to classify the malicious use of digital platforms as “abuse of the media,” which can serve as a justification for the cancellation of a candidacy. In addition, the fraudulent dissemination of news via social networks that influence voters will lead to the cancellation of the registration of the person who broadcasts it, he said.
Cancellation of a State Deputy’s Registration
On October 28, 2021, the TSE canceled the registration of a state deputy (deputado estadual) elected in 2018 due to misuse of social media and abuse of political power and authority. (TSE, Recurso Ordinário Eleitoral No. 0603975-98.2018.6.16.0000, Curitiba, Paraná.)
The case ended up at the TSE after the Electoral Public Prosecutor’s Office (Ministério Público Eleitoral) filed an ordinary appeal with the TSE against a decision of the Regional Electoral Court of the State of Paraná (Tribunal Regional do Estado do Paraná, TRE/PR), which, by majority vote, dismissed the requests made in a judicial electoral investigation action (ação de investigação judicial eleitoral, AIJE) proposed to the detriment of the state deputy, who had been elected by Paraná in 2018, ruling out abuse of political power and misuse of the media.
The AIJE was proposed under article 22 of Complementary Law No. 64 of May 18, 1990, which states that any political party, coalition, candidate or the Electoral Public Prosecutor’s Office may make a report to the Electoral Justice, directly to the general or regional inspector (corregedor geral ou regional), providing facts, evidence, indications, and circumstances and requesting the opening of a judicial investigation to investigate “misuse of, deviation from, or abuse of economic power or power of authority,” or improper use of vehicles or means of social communication (veículos ou meios de comunicação social), for the benefit of a candidate or political party. (Lei Complementar No. 64, de 18 de Maio de 1990, art. 22.)
According to the ordinary appeal, the case had its origin in a live broadcast that took place on a social network, when voting in the first round was underway, for more than 70,000 internet users, and that, by November 12, 2018, had generated more than 105,000 comments, 400,000 shares, and six million views. The defendant — who was a federal deputy at the time — reported the existence of fraud in electronic voting machines and other alleged facts about the electronic voting system.
In the decision, TSE affirmed that
the internet and social networks fall under the concept of “vehicles or means of social communication” referred to in article 22 of Complementary Law No. 64 and added that the Electoral Justice could not ignore the reality that it was clear that the 2018 elections represented a new milestone in the way of carrying out campaigns, with clear advantages in the use of the internet by the actors in the electoral process, who could communicate and garner votes more cost effectively, with broad reach, and in a personalized way through direct interaction with voters.
The TSE then reversed the TRE’s decision and granted the ordinary appeal, in line with the arguments of the Public Prosecutor’s Office, and canceled the defendant’s certification, declaring his ineligibility for eight years, under the terms of article 22(XIV) of Complementary Law No. 64.
The Electoral Justice and the Superior Electoral Tribunal
Brazil’s Electoral Justice is a branch of the judiciary composed of the TSE, the regional electoral courts (tribunais regionais eleitorais), the judges, and the electoral boards. It is responsible for organizing all stages of the Brazilian electoral process, from the registration of voters to the diplomacy of elected candidates. The TSE is the highest body of the Electoral Justice. It plays a fundamental role in the construction and exercise of Brazilian democracy. Its main powers are established by articles 118–121 of the Federal Constitution of October 5, 1988, and by the Electoral Code.The Electoral Justice and the TSE were created by Decree No. 21,076 of February 24, 1932. Five years later, the Constitution of 1937 abolished the Electoral Justice and assigned to the federal government (Union) the exclusive power to legislate on electoral matters. The Electoral Justice was restored on May 28, 1945, with the enactment of Decree-Law No. 7,586.