Brazil's Electoral Court (TSE, as it is known in Brazil) has been monitoring electoral disinformation since 2017, when the concept of “fake news” gained traction in the United States election. Still, there was no amount of foresight that could have prepared the court for the role social media played in the 2018 general elections that eventually put far-right candidate Jair Bolsonaro in the presidency.
Electoral authorities were alarmed by a flood of disinformation on WhatsApp, present on 99 percent of Brazilian mobile phones, as well as on Facebook. There was also the use of WhatsApp mass messaging tools by Bolsonaro's campaign, spreading false news against his contestant, Workers’ Party's Fernando Haddad. The practice has now been ruled illegal by the Electoral Justice.
Today, informed by the experience of 2018 as well as lessons from other countries, the Electoral Supreme Court has brought platforms closer to fight electoral disinformation and counter-attacks on democratic institutions, in an attempt to limit the role social media will play in the 2022 General Elections.
Despite the enthusiasm, the agreements which have established cooperation between the TSE and platforms are non-binding and somewhat opaque, leaving plenty of open questions about the actions undertaken by platforms to secure a safe information environment just weeks away from the first round of elections.
Researchers at the National Science and Technology Institute in Digital Democracy (INCT.DD), tied to the Federal University of Bahia (UFBA), who are monitoring whether the commitments made by platforms are being met, have identified plenty of flaws, particularly in relation to fact-checking content, speed of processing reports, and transparency in fighting disinformation.
In 2019, under the president of the court Justice Rosa Weber, the Electoral Supreme Court launched the “Program to Fight Disinformation,” an experiment with controls directed toward the 2020 municipal elections. In August 2021, the program was made permanent under the then-TSE president Justice Luís Roberto Barroso.
Three of the TSE Justices are also Supreme Court Justices, including the current president, Justice Alexandre de Moraes. Both institutions have come under attack by pro-Bolsonaro and anti-democratic groups, who falsely believe the courts are engaged in a crusade against Bolsonaro. The attacks target Justice Moraes more than any other, as he is the rapporteur for many lawsuits that concern Bolsonaro or close allies.
In February 2022, eight platforms signed agreements with the TSE committing to fight disinformation in the electoral process: Twitter, TikTok, Facebook, WhatsApp, Google, Instagram, YouTube, and Kwai. Since then, other companies, such as LinkedIn and Spotify, have joined the agreement, including an unusual one: Telegram.
In just a few months, Telegram went from Supreme Court foe to ally. In January, TSE president Justice Barroso had said that if Telegram did not cooperate with the court in appointing a legal representative in the country among other requirements, Congress should ban its operation in the country. In March, Supreme Court Justice Alexandre de Moraes ruled to block Telegram’s operation in Brazil as long as the firm did not comply with this and other court decisions. The decision was taken in the context of the case of Allan dos Santos, a pro-Bolsonaro blogger involved in anti-democratic activities. Moraes’s decision was the final display of a dissatisfaction that had built over the course of months. However, the block did not go into effect, because Telegram finally acted.
The agreements between the social media companies and the TSE are based on memorandums of understanding, which list the actions and measures to be taken jointly by the court and each platform. For Telegram, for example, the agreement entails: granting the TSE channel on the platform a verified check, access to the Telegram API, creation of an exclusive channel for TSE to report violating content, labeling disinformation, and participating in routine meetings with the TSE.
Overall, the agreements bind the platforms — regardless of nature and infrastructure — to commit to prioritizing official information as a means to mitigate the harmful impact of fake news on the Brazilian electoral process.
WhatsApp, still under the spotlight due to its role in the 2018 election, has vowed to implement or help implement a series of measures to spread “trustworthy and quality information about the electoral process, such as access to the API and the development of a sticker pack about elections to be used in the app,” according to a notice posted by the TSE.
Even so, WhatsApp has created turmoil due to its decision to withhold the launch of the Communities feature, which enables larger groups and broadcast messages, until after elections. The decision has enraged Bolsonaro, who thought WhatsApp was following orders from the TSE — which is not the case. But, aside from Bolsonaro's own interests, WhatsApp's position has also prompted concern among authorities, who understand it would be safer to release the feature only in 2023, fearing civil unrest between the second round of elections and the inauguration. Additionally, the Public Prosecution Service in Brazil views the launch of larger groups as a regression in the company's efforts to fight misinformation.
All the agreements are non-binding, however, which means there will be no enforcement in the case a platform does not meet the actions listed in the MoU. On top of that, the ongoing development of the agreements between the court and platforms are barely transparent, which means that society, at large, receives little information on how the cooperation is going.
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