By a majority of votes, the TRE-SC (Regional Electoral Court of Santa Catarina) court determined “liminally due diligence to identify the party that created the profile” on a social network that criticizes the candidate for state government by União Brasil, Gene Loureiro. The purpose is that the person responsible for the account can exercise a defense in the action brought by the political party.
In the plenary session on August 22, the 1st clash between negative electoral propaganda x free expression of thought, in the 2022 General Elections, was the highlight among the processes on the agenda. Because of this, the decision serves as a paradigm for future processes that deal with irregular electoral propaganda hidden under the cloak of anonymity.
President of TRE-SC, judge Leopoldo Augusto Brüggemann, gave the vote of minerva – Photo: Bruno Collaço/Agência AL/ND
When analyzing the case, the rapporteur Otávio José Minatto, assistant judge of advertising, considered the appeal filed by the União Brasil party, which asked for the extinction of the profile created on the social network Facebook, used anonymously to make personal criticism of a political nature to be unfounded. -candidate for governorship. In the rapporteur’s understanding, there was no request for a vote and there would be no need to break the aforementioned anonymity.
The Regional Electoral Prosecutor André Bertuol, in his statement, pointed out that there was no prior summons from the Public Prosecutor’s Office of the 1st Degree before the terminative decision. Because of this too, he pointed out the fact that there was no contradictory exercise in the process, because the defendant was not known.
Subsequently, the judge of the Plenum Willian Medeiros de Quadros opened a disagreement and highlighted that “in my opinion, in order to avoid prejudice in the discussion of the case, it is essential to exercise the adversary system, which is the command contained in TSE Resolution 23.608/ 2019”.
In this way, Judge Willian voted for the nullity of the decision, so that there is the possibility of proceeding with the case, determining “liminally due diligence to identify the party that created the profile object of this actio”, summoning Facebook to identify the author, so that there is due summons on the part and there is no restriction of defense.
Rapporteur Minatto persisted in his understanding that there was no explicit request for voters not to vote for a certain pre-candidate. “What you see is the profile user disclosing their personal position”. Subsequently, he drew attention that “the expression ‘no vote’, contained in the publication, is limited to demonstrating a personal opinion (…) through the expressions ‘don’t deserve’, ‘against’, ‘say no’ and ‘don’t win’”, he concluded.
Finally, there was a tie in the vote, and the president of TRE-SC, judge Leopoldo Augusto Brüggemann, broke the tie with a Minerva vote, following the divergence. Thus, unanimously, they heard about the appeal and, by majority – having defeated the rapporteur and the judge Alexandre d’Ivanenko, who denied it – declared, ex officio, the nullity of the decision, the nullity of the sentence and determined the return of the case to origin, pursuant to the vote of Judge Willian Medeiros de Quadros.
At the end of the trial of the first case involving negative electoral propaganda in an anonymous profile on a social network, President Brüggemann quoted words spoken by the president of the TSE (Superior Electoral Court), Minister Alexandre de Moraes, on the occasion of his inauguration, in which leaders were present. of the country’s regional electoral courts. “The tone of the electoral propaganda will be given by the electoral judges, based on the legislation, either nipping the evil in the bud or letting the boat go”, he recalled.