By a majority vote, the Brazilian Supreme Electoral Court (TSE) decided on 12 September that political manifestations made through Twitter may not be considered early electioneering. The understanding was reached following a vote by Justice Dias Toffoli, Rapporteur of an appeal filed by Congressman Rogério Marinho (PSDB-RN) against a fine imposed by the Electoral Justice of Rio Grande do Norte due to messages posted by him on his Twitter account as a pre-candidate for Mayor of Natal in next year's elections.
“Manifestations conducted through Twitter do not configure electioneering, since that social network does not lead to general and indiscriminate knowledge of the manifestations disclosed in it," said the rapporteur. For him, messages posted on Twitter, called tweets, "have the nature of a conversation restricted to those users who have previously accepted to connect to each other”.
Justices Castro Meira, Luciana Lóssio, Admar Gonzaga and Cármen Lúcia agreed with the rapporteur. Castro Meira also noted that Twitter requires user to manifest their desire to receive messages before they do so. “In this case we have a restricted, closed channel of communication that does not configure a widely accessible communication medium. The recipient only receives messages if he/she chooses to", he said.
In the same lines, Justice Luciana Lóssio said that in the case of Twitter, only those "who seek information" from the network receive it, which is totally different from a billboard placed in the middle of a large avenue or a street. “You go by that road and are forced to see that publicity.”
Justice Admar Gonzaga, in turn, noted that Twitter is different, for instance, from advertisement made through spamming. “In that case I am being invaded in my privacy. I did not authorize it, did not provide my e-mail, and yet am upset daily with advertisements, many of which unpleasant", he said.
President Cármen Lúcia reaffirmed her position that Twitter does not lend itself as an instrument for electioneering. “For me, [Twitter] is just a virtual bar table.” She also added that wanting to control messages exchanged by Twitter "is a war lost in advance, because there is not the slightest possibility of having control over it”.
Justice Laurita Vaz and Justice Marco Aurélio have diverged from the prevailing opinion. Justice Laurita said that she would remain in line with the case-law created on the trial (Representation 1,825) conducted by the TSE in March 2012, when it was determined that it is illegal and punishable by fine for a candidate or political party to do any electioneering on Twitter before July 6 of the year of the election, after which electioneering is permitted by Election Law (Law 9,504/1997).
She noted that the decision of the Electoral Court of Rio Grande do Norte considered that the messages posted by Rogério Marinho were unequivocally intended at promoting his candidacy for mayor of Natal in the 2012 elections.
“In the trial of Representation 1,825, whose rapporteur was Justice Aldir Passarinho Junior, it was here decided that Twitter is a means for untimely electioneering because it is widely used to disseminate ideas and information to general knowledge," he said.
Justice Marco Aurélio highlighted the importance of recognizing the "high penetration" of Internet-based communication, and also cited the decision of the Electoral Court of Rio Grande do Norte, which pointed out the disclosure of speeches made in partisan events via Twitter to support the pre-candidacy of Rogério Marinho. “The fact that only those who express their wish to receive the communication do so do not obviate the occurrence of electioneering", he concluded.
Rogério Marinho was charged by the Electoral Attorney General's Office (MPE) for posting speeches by political leaders of the state on his Twitter account, all favorable to his pre-candidacy and given at an event held by the PSDB and DEM on June 1 2012 in Rio Grande do Norte.
Related case: RespE 7464