Judges and specialists debate freedom of speech and electoral propaganda

Seminário Perspectivas e Desafios da Propaganda Eleitoral: Eleições 2018

Electoral propaganda based on freedom of speech and the dilemas of the electoral propaganda on the Internet, those were the themes debated in the panels that opened the seminar’s program of Thursday afternoon (19th) “Perspectivas e Desafios da Propaganda Eleitoral: Eleições 2018” (Perspective and Challenges of the Electoral Propaganda: 2018 Elections). The event, organized by TSE, happens until tomorrow (20th), in the main building of TSE.

The first panel, entitled “Aspectos doutrinários e jurisprudenciais da propaganda eleitoral à luz da liberdade de expressão” (Doctrine and jurisprudential aspects of the electoral propaganda based on freedom of speech), relied on the participation of the director of TSE Electoral Judiciary School, justice Tarcisio Vieira de Carvalho Neto; of the vice electoral attorney, Humberto Jacques; and of the TSE secretary general of the presidency, Carlos Eduardo Frazão.

To justice Tarcisio Vieira, moderator of the panel, amongst the most relevant principles of the contemporary Electoral Justice there is the freedom of speech, “that, like justice Carlos Ayres said, is maybe one of the greatest expressions of freedom,” he highlighted.

In his presentation, the justice remembered that, in the field of electoral propaganda, beyond this constitutional confrontation, there are “news of a greater systematization and of a more verticalized look on events such as this, which is destined to specialists that will work exactly in the front line of this friction, which is very concerning.”

The justice ended his speech highlighting that the Electoral Justice has been taking exciting measures about fake news.  “In the sense of constructing consensus solution with the companies that are represented in this meeting, so that we can ward greater risks of denaturalization of a more fertile and more natural democratic debate.” In his opinion, one of the debated themes is the power of politics in the Electoral Justice, “that would not invalidate contents and would not be able to be classified as censorship. But would be viable, in this perspective, for the removal of propaganda created by robots,” he said.


For the vice electoral attorney general, Humberto Jacques, the challenge of Law in Brazil is to approximate the ideal expressed in the daily practice of the Federal Constitution, which, rarely, is contradicting. “The repressive tutelage of the State is not the best path to maturity, but the promotion of freedom so that the people and Law can find their own path. The electoral judges work under the paradigm of freedom, and not repression. In principle, all the actors perform this process in good faith,” he said.

Jacques concluded his presentation by stressing the time for decisions in the Electoral Justice: “Time works, neither in favor nor against. We can not discard it. Furthermore, we should remember that we are not the protagonists of this process. This is a game of the society, of the voters and of the elected,” he concluded. “The constitution, which instituted the Electoral Justice, is the same that exalts the freedom of speech. It is necessary that politics grows with basis on freedom. Much more than guardians of truth, we are the guardians of freedom,” he completed.

Agreeing with the vice electoral attorney general, the secretary general of the presidency of TSE, Carlos Eduardo Frazão, highlighted that “the protagonists are the citizens, the candidates, the political parties, politics, and not justice. People are becoming more discouraged at each time. You do not stimulate the citizen to come to politics if you bet on a regime of prohibition and insecurity, but rather in a regime of freedom,” he said.

Frazão stressed yet that it is necessary to bet on a regime of greater freedom for the electoral propaganda, in order to reestablish equality: “That is how you defend isonomy.  Freedom is not an enemy, it does not depreciates, but promotes isonomy,” he concluded.

Reflexions on the practical dilemmas

The second panel of the afternoon had the theme “Propaganda eleitoral na Internet: dilemas práticos” (Electoral propaganda on the Internet: practical dilemmas) and was reserved for more technical aspects. The participants of the panel were the general coordinator of the extension course in Electronic Law of the Escola de Magistratura of Rio de Janeiro, Walter Capanema; the judge of the 15th Central Civil Court of Sao Paulo, Fernando Tasso; José Rollemberg Leite Neto, lawyer specialist in Electoral Law.  The panel had, as a moderator, the chief adviser of the Electoral Judiciary School of TSE, Leonardo Fonseca, which emphasized the role of the seminar in order to bring new reflexions to the judges and specialists that were participating in the event.

In an educational way, the panelists talked about issues such as the removal, blocking and disabling of content; the challenges of judges in decisions that involve the electoral propaganda; URL; new media; amongst others. Furthermore, they have talked about the importance of the main legal marcs on the issue, such as the “Marco Civil da Internet” (Civil Mark of the Internet) and Resolution n. 23,551 of TSE on the electoral propaganda, defending the minimum intervention of the electoral propaganda, which should only act in cases in which there is definitely harm or legal disobedience. “The TSE norm is fundamental in order to judges act in decisions that concern the electoral propaganda,” Fernando Tasso highlighted.

During the panel, Walter Capanema remembered that the Brazilian legislation is applicable to foreign companies, which provide services to users in Brazil, even though their head offices are in another country. José Rollemberg Neto highlighted yet that the promotion that a candidate has, on the Internet, is greater than in a rally. “The role of the judge, in the electoral process, must be the one with less interference as possible, and that also refers to the removal of content on the Internet,” he defended.

Know more

Seminar organized by the TSE, the event reunites until tomorrow (20th) judges from all over the country that are responsible for analyzing lawsuits that involve the electoral propaganda. They will debate legislative and jurisprudential news on the issue, which covers the following themes: freedom of speech, anticipated propaganda, use of social media, promotion of content, and fake news, amongst others.