Fake News in Brazil's 2018 Presidential Elections: A Systems Theory Approach to Judicial and Legal Responses

Abstract

This article adopts an approach from social systems theory to map the legislative and judicial responses produced by Brazilian law in light of the 2018 presidential election in Brazil, a political event marked by the mass dissemination of fake news. The study applies social systems theory to observe and interpret the legislative process in relation to a Draft Statute on Fake News which is part of a regulatory movement concerning digital communications and personal data in Brazil. The article combines this with observations on case law from the Superior Electoral Court regarding fake news dissemination during the 2018 presidential election. The results of these analyses demonstrate the difficulty of regulating fake news in Brazil and the problems with a legal framework based on the deference of the Judiciary to legislative decisions; its openness to technology experts; and the adoption of “regulated self-regulation” as a way of building an interface between legal and political national systems and transnational digital platforms.

Contemporary socio-legal studies empirical and global perspectives

“…Privileging freedom of expression and the autonomy of voters to inform themselves, the court did not even touch on points such as hate speech and the protection of personal data by digital platforms. In general, it established a strong presumption in favor of free speech, against further 'policing' of false content on private messaging services and social networks(Barros et al 2022.The Superior Electoral Court had the opportunity to further evaluate the abuse of economic power and the abusive use of the media by the winning presidential slate in 2018, pursuant to art. 22 of LC No.…”

“…64/90, in proceedings opened because of the mass shooting of disinformative messages, hired in favor of that slate by legal entities, including. However, in February 2021, the electoral judicial investigation actions (AIJEs 0601779-05 and 0601782-57) on the issue culminated in a paradox: understanding that it would not be within that type of procedure to determine the conduct of further investigative measures, the majority of the Court decided for the acquittal of the elected presidential plate for lack of evidence on the mass shooting of digital messages in the 2018 election(Barros et al 2022. In August 2021, the TSE decided to open an administrative inquiry to investigate several crimes involved in communication strategies to attack the legitimacy of elections and the soundness of electronic ballot boxes.…”

“…In its jurisdictional role, the Superior Electoral Court was careful in punishing fake news, establishing a presumption in favor of freedom of expression. The rulings about the orchestration of a digital misinformation campaign led in 2018 in favor of the victorious presidential slate were inconclusive in terms of the collected proofs(Barros et al 2022.…”