Judicial activism or democratic safeguard? The new limits of digital electoral propaganda in Brazil
General Context
On March 1, 2024, the Superior Eleitoral Court of Brazil is public. 12 resolutions that will govern the 2024 elections, intended to elect the prefects and vereadores of the 5.568 municipalities of the country for the term 2025-2028.
Brazilian electoral resolutions are regulations issued to each electoral process and have the objective of regulating federal legislation on elections, (article 105 of the Lei das Eleições), lending itself to adapting general norms to specific contexts. They deal with various topics, such as electoral investigations and registration of candidatures. Fazem consign, for example, the calendar that will govern the activities of the year, and the updated values for the distribution of the Special Campaign Financing Fund. I have in view that they originate from an orgão of judicial power, it is understood that these devices do not have to draw up legislative innovations. This text addresses some of the two most relevant points. Resolution No. 23.732/2024, about electoral propaganda, which seeks to accommodate the rules that govern the campaign's data to the new realities of the digital environment.
A note on the process
Before delving into the merits of the norm itself, it is important to make a brief note on the formalities of drafting and approving TSE resolutions. This process is conducted by the office of the vice-president of the Tribunal, and is always preceded by the publication of minutes and texts. These first verses are only submitted to public hearings, moment in which the TSE receives written and oral contributions from various sectors of the society regarding the devices in question. After receiving the contributions, the cabinet redigests the final texts and leads you to the plenary vote. When approved, the regulations are published and are valid for the next lawsuit.
The particularities about the 2024 process
According to tradition, in 2024, the TSE will publish the minutes of the resolutions and promote public hearings to receive comments and suggestions from interested entities from all sectors. Second or own Court, The sessions contain participation records. Between civil society organizations, public sector bodies and digital platform teams, the process includes 80 oral and 945 written contributions.
It happens that, when the final text was published, the entities that engage did not process the public hearings foram understood with a device that did not contain the first versions. In addition to other innovations, article 9-E trouxe polêmica moving in the regime of responsibility of intermediaries during the electoral process. These and other alterations are described below.
Relevant points of the new text on electoral propaganda in the digital sphere
Change in the framework of responsibility for intermediary platforms – Artigo 9º-E
As mentioned, the most controversial device of resolution 9º-E, which alter the regime of responsibility for intermediary platforms established by the Civil Code of the Internet (MCI). The drafting of article 19 of the MCI establishes that platforms will only be liable civilly for content published by third parties in the event of missing judicial notification of removal, based on the logic of avoiding undue monitoring and removals by two providers. Além disso, a própria Read the Eleições, in its article 57-F, repeats the terms of MCI, reproducing its model of responsibility for electoral propaganda.
Article 9º-E, however, opens the possibility of civil and administrative liability for companies when it does not promote the immediate withdrawal of five groups of contents considered as "risk cases." In summary, (i) undemocratic conduct, (ii) dissemination of disinformation, (iii) protection of the integrity of institutions and their servers, (iv) hate speech, (v) failure to label artificial intelligence content, traced by the own resolution.
The device concerned interested parties in the discussion, mainly for two reasons:
- First of all, it is a normative instruction issued by a Court that expressly contradicts federal law, in any case, to the Law of Eleições and the Civil Framework of the Internet. The purpose of the resolutions of Eleitoral Justice is to regulate already existing devices, and not to modify parameters established by the legislative branch. Two regimes of liability for intermediaries cannot coexist in the Brazilian ordinance.
- Além disso, mentioning its practical application, as a consequence of the resolution is precisely what Marco Civil tries to avoid: private censorship by the platforms in question. Once the risk of civil and administrative liability is incurred, companies may opt for the security and preservation of their own services and operations, to the detriment of the freedom of expression of their users, as well as the free circulation of speech. This is a perverse consequence of the resolution, because it encourages providers to act as curators of public debate, and, even, in the electoral period, when the content is displayed, there are news, political advertisements, opinions or others, at all, or at least the slightest bit of value. democratic.
Other resolution devices
In addition to changing the liability regime, Resolution No. 23.732/2024 contains various devices with new provisions and obligations for candidates, parties and platforms. Or article 9º-C, for example, layout for or ordering Express prohibition of dissemination of disinformation content, with the following terms: "facts that are notoriously untrue or decontextualized with the potential to cause damage to the balance of the lawsuit or the integrity of the electoral process." Or article 9º-C § 1º, in turn, specifically prohibits or uses deep fakes, a concept that defines as "synthetic content in the format of audio, video or combination of both, which has been generated or manipulated digitally, including by authorization, to create, substitute or alter the image or voice of living, deceased or fictitious people."
Or artigo 9º-D It presents an express ban on sponsorship of content containing disinformation on social networks. The device is relevant because Brazilian legislation authorizes the carrying out of paid political propaganda on digital platforms (artigo 57-C of the Lei das Eleições) through the figure of “content impulse”. Also, the same article provides various instructions for the platforms, such as the elaboration of terms of use that seek to reduce the circulation of misinformation, implementation of complaint channels, publication of transparency reports that disclose actions taken to improve content recommendation systems, implementation of impact assessments of services on eleitor integrity to , among others.
The resolution also shows changes in artificial intelligence. Or article 9º-B regulates its use in eleitorais bells determining explicit labeling when houver use of tools. It determines, for example, which pieces of audio and video should come with prior notice of the use of technology, and requires the use of watermarks and audio description in images and videos. The resolution traces, in addition to the application of these labels, in cases of adjustments intended for the improvement of image quality or sound, for the production of visual identity and brands, are advertising resources commonly used in campaigns, such as montages in photographs.
Lastly, The regulations outline progress in transparency when a public advertising library is inaugurated, an updated repository that compiles, in real time, the pieces of advertising, the period of validity of the advertisement, the values and the characteristics of the users affected by the contracted advertising. At this time, except for the declarations of campaign expenses, when the candidates inform about their expenses in the electoral period, there was no instrument that revealed information about the scope and audiences of the sponsored posts.
Conclusion
The publication Resolution No. 23.732/2024 There have been extensive debates between the various actors that integrate the discussion of platform regulation and its intersection with elections in Brazil. On the one hand, it addresses anti-gas guidelines of society, establishing transparency requirements for platforms, such as in the case of two repositories of advertisements, where the electorate will be able to accompany the values released in propaganda on the platforms of candidates and parties. In addition, there is a first regulatory approach to artificial intelligence, with reasonable provisions about, for example, the need to label content that uses tools.
On the other hand, inserting a regulatory order that has the potential to harm the freedom of expression on the Internet, generating more doubts about certainty and legal certainty. Além disso, crosses perigosas lines of competence of a orgão of judicial power to outline legislative innovations that find themselves at federal prices. Even though the challenge of combating disinformation has enormous dimensions, it cannot give room for flexibility in processes and federal laws.
Here is Tom Lembrar, alias, that since 2020, Brazil has been experiencing a continuous process of discussing the law project. (PL 2630/2020), which seeks to update the regulation of the digital environment, outlining various transparency requirements and systemic actions to promote safe, plural and diverse spaces for expression. No matter how respectful the intentions of the TSE are, and how long and complex the legislative process is, it is in this power that resides the capabilities and authorities to issue regulations of this nature, and it is from which a robust, legitimate and effective to address the challenges presented by the digital ecosystem.
