TSE Resolution for the 2024 Elections violates Marco Civil da Internet

The decision of the Superior Electoral Court (TSE) to determine, through a resolution, that digital platforms may be punished if they do not remove content considered harmful to the fairness of the next elections is being seen by jurists and entities consulted by the People’s Gazette as a serious risk to freedom of expression, in addition to contradicting the Internet Civil Framework and advancing the prerogatives of the Legislative Branch.

Through a technical note, the Sivis Institute, a civil organization dedicated to promoting democratic values ​​in the country, warns of the possibility of prior censorship based on what was established by the TSE. The entity recalls that the Marco Civil da Internet has been in force for 10 years and provides for the liability of providers only through a specific court order, that is, when a judge orders the removal of content and the platform does not comply with the decision.

The institute also highlights that there is a clear encroachment by the Court on the exclusive competence of Congress to legislate on topics such as fake news (fake news), hate speech and modern resources of artificial intelligence and distortion of reality in the online environment, especially deepfake – creating images, videos or voices of real people doing or saying things they did not do or say.

“It is extremely important that society, including journalists and human rights defenders, be heard on issues that affect freedom of expression and democratic integrity”, highlights Henrique Zétola, president of the institute.

Sivis’ criticism focuses on article 9-E of TSE Electoral Resolution 23.732/24. This excerpt says that internet platforms, such as social networks, will be “jointly and severally responsible”, civilly and administratively, if, during the 2024 Elections period, they do not immediately remove content and accounts considered at risk by the Court. TSE ministers consider cases to be “risky”:

• Conduct, information and acts that undermine democratic institutions and the electoral process;
• Disclosure or sharing of “notoriously untrue or seriously out of context facts that affect the integrity of the electoral process, including the processes of voting, counting and tallying votes”;
• “Serious threat, direct and immediate, of violence or incitement to violence against the physical integrity of members and employees of the Electoral Court and Electoral Public Ministry or against the physical infrastructure of the Judiciary to restrict or prevent the exercise of constitutional powers or violent abolition of the Democratic Rule of Law”;
• “Hateful behavior or speech, including promotion of racism, homophobia, Nazi, fascist or hateful ideologies against a person or group due to prejudice based on origin, race, sex, color, age, religion and any other forms of discrimination”;
• “Disclosure or sharing of content manufactured or manipulated, partially or entirely, by digital technologies, including artificial intelligence”, which are in disagreement with the rules set out by the TSE itself.

In February, the president of the TSE, Alexandre de Moraes, said that the resolution approved by the Court is one of the “most modern standards in the world” and will allow the Electoral Court to have “effective instruments to combat distortion in electoral advertisements, in speeches hatred, fascist, anti-democratic and the use of artificial intelligence to put something into a person’s speech that they did not say”.

Measure hinders reactions from parties and candidates

Legal consultant André Marsiglia, who supported the Sivis Institute’s opinion, recognizes the TSE’s concern in guaranteeing the stability of the Democratic Rule of Law in the face of the challenge of disinformation, but fears that the measure taken with this intention could attack freedom of expression, a fundamental principle for sustaining the democratic regime itself.

As an aggravating factor, he recalls that any appeals filed by candidates or parties against the effects of the resolution would be examined by the same Court and by the same ministers who issued it, limiting the effectiveness of these judicial instruments.

“It is therefore necessary to appeal to the awareness of citizens and, above all, of electoral judges about the risks arising from the reckless application of these new rules, to avoid an escalation of censorship in the October elections”, he said.

Marsiglia also points out other relevant factors at play. “The resolution will be applied not only by the TSE, but by first instance judges. As municipal elections are less visible to the mainstream media, local candidates are almost always subjected to criticism from less structured journalism, therefore, more susceptible to giving in to the application of rules without the necessary maturity,” he noted.

Marco Civil da Internet is in the sights of the STF

The retired minister of the Federal Supreme Court (STF) and former president of the TSE Marco Aurélio Mello has been warning in recent weeks, through interviews with the press, about the need for the Brazilian Electoral Court to stick to its basic function this year, of mere coordinator of the electoral dispute.

For him, the series of 12 resolutions issued by the TSE to regulate the 2024 Elections will imply setbacks to democracy, as its resulting regulations would be being dictated without respecting the limits of the Judiciary defined by the Constitution.

The lawyer specializing in digital citizenship and topics related to technology Hélio Ferreira Moraes states that the TSE resolution that seeks to regulate artificial intelligence in elections, in practice, revokes articles from the Marco Civil da Internet, distorting the essence of a law approved by Congress a few years ago. 10 years.

Although he recognizes that Congress has not yet deliberated on a specific law to combat disinformation on online platforms, he understands that this supposed omission by parliamentarians does not justify granting higher courts powers to trample other spheres of competence.

“I also don’t see a clear solution to this complex issue in the measures taken. I believe regulation is necessary and the discussion is currently polarized between defending the total absence of rules and excessive, partisan and dangerous intervention”, he assessed.

The STF is also analyzing changes related to the regulation of digital platforms, including the possibility of revoking article 19 of the Marco Civil da Internet, which exempts technology companies from liability for publications made by third parties.

“Many things have happened in 12 years, and obviously we have to revisit them to adapt to new realities”, said the president of the STF, Luís Roberto Barroso, at an event on March 8, when commenting on a possible update of the Marco Civil da Internet. However, there is still no forecast for the resumption of this trial.

In Congress, the topic is being addressed in Bill 2630/2020, known as “PL da Censura” or “PL das Fake News“, but the process has been blocked since the middle of last year.

If in doubt, platforms will lean towards censorship

For Hélio Moraes, the ideal is for the Legislature to define a regulation that does not restrict freedom of expression. In this sense, he points to the fact that the TSE resolution makes a serious mistake by presenting two legally undefined and largely subjective concepts: those related to the “disclosure of notoriously untrue” or “severely decontextualized” facts. By allowing the platforms themselves to evaluate the content to conclude whether any of the situations occurred, the court raises delicate questions.

“How would a provider determine whether or not Bolsonaro can be called a genocide or whether Lula can be considered corrupt or not? Everything requires a clear criterion of truth, which is extremely difficult to establish”, he pondered.

As it stands, the joint liability imposed on companies creates significant pressure on them, leading them to remove content from the air to avoid conflicts with courts and individuals, thus strengthening self-censorship.

“The current accountability mechanism for media outlets is already rigorous and can even revoke applications. Going beyond this could result in excessive restrictions on freedom of expression during the electoral period”, he protested.

Risks with the “social function” of providers

Finally, the lawyer notes that the discussion about the role of artificial intelligence in elections is relevant, but needs to be approached carefully, considering that the intention to falsify information has always existed, involved groups with different ideological profiles and used all available resources. .

Furthermore, Hélio Moraes is concerned about the expansion of judicial powers to stop the dissemination of false information under the justification that providers would have a social function, “an obligation that needs to be clearly established together with the criteria for its application”.