Jurists and representatives of social media debate electoral propaganda on the Internet at an EJE / TSE event

Seminário Perspectivas e Desafios da Propaganda Eleitoral: Eleições 2018

More than 60% of Brazilians have access to the internet and Brazil is the 4th most connected country in the world. This was the starting point of the substitute justice of the Superior Electoral Court (TSE), Carlos Horbach, when he opened the panel "Propaganda Eleitoral na internet: redes sociais e impulsionamento de conteúdo" (Electoral Propaganda on the Internet: social media and the promotion of content), which followed up the seminar "Perspectivas e Desafios da Propaganda Eleitoral " (Perspectives and Challenges of Electoral Propaganda), promoted by the Electoral Judiciary School of TSE (EJE / TSE) on April 19 and 20.

According to the justice, the law is constantly challenged by the evolution of times and customs, especially the Electoral Law in the field of electoral propaganda, precisely because of the evolution of internet usage by the population. He pointed out that the innovations brought by the 2017 political reform to the electoral legislation, especially in the field of electoral propaganda on the Internet and social media, were reflected in Resolution TSE n. 23,551/2018, which is dedicated to electoral propaganda.


The panel was attended by Facebook, lawyer Patrícia Helena Marta, public policy manager Rebeca Garcia, and lawyer Marilda de Paula Silveira.

Rebeca Garcia pointed out that Facebook is the most frequent atypical jurisdiction in the Electoral Justice, because of the number of users in Brazil and the growing connectivity of Brazilians. Patricia Helena, meanwhile, mentioned that Facebook has already been involved in about five thousand lawsuits, of which only 17 were brought to higher courts.

She explained how the dynamics of the platform is and how to apply the terms and conditions of use of the social media, which is imposed on all users. She also highlighted a series of requirements that are made by the system in order to guarantee the credibility of the content that circulates in the community, such as the requirement of the civil or social name of its users. Marta also explained that companies, celebrities or politicians do not have profiles like individual users, but pages; which have no friends but followers. And, finally, that these pages have their own tools, such as the possibility to boost (sponsor) content or create events.

According to the lawyer, the demand incorporated by the electoral legislation, so that the denounced content is identified with the URL of the post, allows its exclusion in a specific way, preserving the rest of the page that generated it, thus safeguarding the freedom of speech. Finally, she explained the difference in concepts between organic content and promoted or sponsored content, demonstrating the tools available so that the user can recognize paid posts and identify who is responsible for their promotion.

When speaking, lawyer Marilda Silveira brought to the discussion a series of questions that, for her, still need to be answered.

She highlighted the difficulty in monitoring sponsored content, especially those generated by unofficial pages that support candidates, parties or coalitions; or by false profiles that would be part of a virtual guerilla. She also pointed out the paradox of the current electoral legislation, which prohibits traditional propaganda in the days before the vote, but allows sponsored content to be served on social media even on election day.

Silveira also questioned the limits of legality in the disclosure of content related to the elections but that are not part of the electoral campaign, such as news on the candidates, through pages that are not part of the official election campaign, or by false profiles. In discussing this topic, she suggested that the control of this content should be done in three instances: identification of users, exclusion of false accounts; evaluation of the disclosed content; and research on the promotion of this content.


The final debates of the seminar's first day, entitled “Fake news : democracia e controle judicial” (Fake news: democracy and judicial control), were mediated by the EJE/TSE representative, Fernanda de Carvalho Lage, with the participation of jurists Gustavo Bonini Guedes, Mário Augusto Figueiredo de Lacerda Guerreiro and Diogo Rais, as well as the Facebook representative, Rebeca Garcia.

Guerreiro was the first to speak, setting out an overview of what fake news would be, namely: the false content that is advertised to garner adherence (so-called "likes") aimed at diminishing someone's credibility or something, through the mobilization of public opinion. He cited the existence of the so-called bot farms, companies dedicated to assembling and running fake profiles, usually by means of robots, in order to disclose untrue content. He also mentioned the emergence of agencies dedicated to identifying and combating the spread of false news, both abroad and in Brazil. Finally, he pointed out the innovations brought to the electoral legislation so as to combat the disclosure of fake news.

Gustavo Guedes, in turn, recalled the impact of fake news in the US elections. According to him, 46% of the content that circulated through social media, during the campaign, was false, and more than 126 million people were impacted by this news. This would demonstrate that the great challenge of the 2018 elections will be social media, especially messenger platforms like WhatsApp.

He questioned how the law will be applied in cases of fake news, especially when they involve the right to answer websites with lower impact, outside the official election campaign, which have disseminated illegitimate content. He also pointed out that, in case of fake news, the burden of proving innocence is shifted to the one accused for fake news, unlike what happens in the criminal sphere, where the burden of proof lies with the accuser. Finally, he suggested the development, through social media platforms, of tools that would assist their legal departments in identifying fake profiles, bots, and virtual guerrilla warfare.

Professor Diogo Rais, in turn, drew a distinction between what would be fake news and mere misinformation, according to the parameters of the deceit in the disclosure, the reached scale and the damage done to the reputations."People are more concerned with the fever than with the infection," he said, recalling that their origin or even the "real infection" would be the deep polarization that characterizes the current political debate in Brazil.

Very little can be done in relation to polarization; but disinformation, on the other hand, which is what causes it, can be counteracted by a more assertive dissemination of legitimate information.

He argues that this is not the time to try to regulate fake news because, in practice, this would be fruitless work. According to Rais, the legislation already has provisions to curb slander, insult or defamation, and the solution for our reality is the reinforcement in the dissemination of reliable news.

Rebeca Garcia, on the other hand, proposed the definition of fake news as being "intentionally false information, produced to be confused with news or legitimate information."

In her opinion, social media do not have the role of being referees of the truth, since their focus is on the behavior of its users. According to her, Facebook represses the dissemination of false content on four fronts: repression of false accounts; the reduction in the distribution of false content; supporting the informed community, strengthening journalism and establishing partnerships with agencies dedicated to fighting false news; and, ultimately, promoting greater transparency in their ads and promoted content.

"It is not Facebook's goal to have a paternalistic attitude or to protect its user," she said, citing the structure that was set up by the platform to investigate and monitor allegations of breaches to the network standards that are made daily by its users around the world.In addition, she cited initiatives such as establishing partnerships with fact-checking agencies and conducting campaigns to raise awareness of users about fake news.