Supreme Court of Brazil’s inquiry against fake news: advancement or step backwards?

On March 14, the Chief Justice of the Federal Supreme Court of Brazil (Supremo Tribunal Federal – STF), Dias Toffoli, ordered the opening of an inquiry to investigate the alleged existence of slander, threats and fraudulent reports against the Court, its members and relatives. The investigation, which has the Minister Alexandre de Moraes as rapporteur, has been provoking strong reactions from several sectors, including jurists, prosecutors and even other justices. The Rede Sustentabilidade party, the author of a request to suspend the measure in STF, even compared it to AI-5, the most known repressive act of the Brazilian military dictatorship.

In today’s blog post, we examine the controversy that has unfolded around this investigation, called Inquiry Nº 4781.

What we do know about Inquiry Nº 4781

The investigation has been opened through the Ordinance from the Chief Justice’s Office nº 69/2019, which is reproduced below in its entirety with specially relevant parts in bold:

 

THE CHIEF JUSTICE OF THE SUPREME FEDERAL COURT, under the authority conferred to him by the Rules of Procedure,

 

WHEREAS, to ensure the intangibility of the prerogatives of the Federal Supreme Court and its members, is an attribution of the Chief Justice by the Internal Regulations (Rules of Procedure of the Supreme Federal Court, art. 13, I)

 

WHEREAS the existence of fake news, slanderous denunciations, threats and infractions laden with animus calumniandi, diffamandi and injuriandi, which affect the honorability and security of the Federal Supreme Court, its members and family members,

 

RESOLVES, pursuant to art. 43 and following of the Rules of Procedure, to establish an inquiry to determine the corresponding facts and infractions, in all their size,

 

I designate the eminent Justice Alexandre de Moraes to conduct the procedure, who can request the Chief Justice the material and personnel structure necessary for its conduct.

The document provoked immediate reactions from entities related to the legal area. In a note of support, the Brazilian Bar Association claimed that national bar would also be the target of “fake news, slanderous denunciations and threats that seek to achieve the honor of Brazilian lawyers and lawyers.” In a joint note, the Association of Brazilian Judges , the Association of Federal Judges of Brazil and the National Association of Judges of Labor Justice also expressed their support for the investigation.

On the other hand, the measure also received several criticisms, including from other members of the Supreme Court, such as Justice Marco Aurélio. It is argued that opening criminal investigations about facts that occurred outside the premises of the court is not an attribution of the Supreme Court, whose role is to judge, but rather of entities such as the Federal Police and the Public Prosecutor’s Office. The lack of definition regarding the scope of the inquiry was also criticized, as well as the possibility of violation of the fundamental right to freedom of expression.

As initial measures, Justice Alexandre de Moraes ordered the blocking of accounts suspected of publishing offensive content to the court, as well as conducting searches and seizures of electronic devices at various addresses. One of the targets of the searches, lawyer Adriano Arnolo, says that the messages attributed to him are not his own and that his accounts have been cloned. In response to criticism of the inquiry, Justice Moraes stated: “Complain at will, criticize at will. Who interprets the Rules of Procedure of the Supreme Court is the Supreme Court.”

More recently, the investigation has become the subject of a lawsuit filed in the Supreme by the Rede Sustentabilidade party. The party requests its annulment by means of a declaration of unconstitutionality of the ordinance that establishes it. In its complaint, Rede claims that the Inquiry “may be directed against journalists, members of the government, members of the judiciary and the Public Prosecutor’s Office, as well as citizens in general”. The mechanism is even compared to Institutional Act 5, the most severe legal instrument of repression of the Brazilian dictatorial period, during which the executive branch captured legislative and judicial powers and significantly expanded the investigative power of the presidency.

Justice Edson Fachin, who was assigned as judge-rapporteur of the lawsuit, asked the Chief Justice to provide more information about the investigation.

But is this an effective way to address the problem of disinformation?

Online disinformation began to receive significant attention from Brazilian society in 2018. The spread of fraudulent content on the life of councilwoman Marielle Franco – murdered along with Anderson Gomes, her driver, in March of that year – was the subject of extensive media coverage. Similarly, the fake news debate dominated the election period and the topic remained in the media agenda throughout the year. While this broadening of the debate is important and necessary, the institutional response to the problem, however, can be characterized by one word: unpreparedness.

In the legislative branch, the solutions devised were basically limited to several bills aimed at criminalizing fake news. This individualistic and punitive treatment of the issue gained a great deal of attention in the media and in society, although a series of more effective alternative measures were suggested by the Social Communication Council of the National Congress that same year. Institutional representatives of Brazilian Intelligence Agency and Superior Electoral Court came to consider, in the fight against fake news, completely irregular and disproportionate actions, such as the massive monitoring of Brazilians and even the annulment of the electoral process.

In addition to being obvious violations of fundamental rights (privacy, freedom of expression, etc.), such initiatives are ineffective because they seek to punish individuals rather than address the ecosystem that originates and conditions disinformation. Examples of factors characterizing this ecosystem are the use of algorithmic bubble filters in social networks by default, lack of educational initiatives for critical media consumption, poor efficiency of supervisory mechanisms on the advertising sector, expansion of the smartphone as an exclusive means of access to the network (mainly in classes D and E and in rural areas).

It is, therefore, a scenario in which economic and political incentives for the production and dissemination of the disinformation content are articulated to factors that reduce the discriminative capacity of the users. This has been reiterated in international reports on the subject, such as those of the Council of Europe and the European Commission. In this context, the insistence on individual penalization is symptomatic of an inability of institutions to deal with the complexity of the problem.

Does the law authorize the Supreme Court to conduct investigations in this case?

As noted, one aspect much emphasized by critics of the action was the confusion it fosters between the functions of accuser and judge. The penal system provided for in our Federal Constitution is accusatory: it separates such roles institutionally. It is different from the inquisitorial system adopted in countries like the USA, which admits the active participation of the courts in the investigations. In Brazil, therefore, except for previously specified exceptions, it is not for the courts to institute criminal proceedings or conduct investigations – their function is to judge.

The case in question is not one of those exceptions. The legal provisions cited by the ordinance that opens the inquiry (Article 43 et seq. of the Rules of Procedure of the Federal Supreme Court) do not even apply to the circumstances under discussion. Let’s see what they say:

Article 43. In the event of a violation of the criminal law at the seat or premises of the Court, the President shall initiate an inquiry, if it involves an authority or person under its jurisdiction, or delegate this assignment to another Minister.

 

• 1 In all other cases, the President may proceed in the manner of this article or request the instituting of an inquiry to the competent authority.

 

• 2 The Minister responsible for the investigation shall appoint a clerk from among the servants of the Court.

 

Art. 44. The police of the sessions and the hearings are the responsibility of its President.

Rules of Procedure of the Federal Supreme Court: § 1 of art. 4th (Chief of Chamber) – art. 21, I (Judge-Rapporteur) – Art. 143, caput (Full) – single paragraph of art. 148 (when the Chief Justice is Rapporteur).

 

Art. 45. Administrative inquiries shall be carried out according to their own norms.

Since the ordinance does not even specify what the facts to be investigated and who would be investigated, it can not be said that there is an infraction of the criminal law occurred in the seat or premises of the Supreme Court, much less that the “facts” (which?) involve authority or a person subject to its jurisdiction. The document contains only a vague reference to “the existence of fake news, slanderous denunciations, threats and infringements laden with animus calumniandi, diffamandi and injuriandi, which affect the honorability and security of the Federal Supreme Court, its members and relatives”.

In this sense, besides the violation of the accusatory system, we observe that the requirements necessary for the Supreme to exercise its police power were not fulfilled. These irregularities are aggravated by the absolute secrecy under which the proceedings have been conducted, which adds a layer of opacity to the scenario of institutional exception already described. In addition to its lack of effectiveness in confronting misinformation, therefore, Inquiry Nº 4871 contributes to the instability of democratic institutions.

Conclusion

“Fighting disinformation is like sweeping the streets,” said Claire Wardle, one of the researchers who signs the European Council report on the subject. The phrase sheds light on the real core of the debate: public policies and multisectoral actions based on multidisciplinary and updated scientific research. From a scientific point of view, the aim of such policies should be to increase society’s resilience to misleading content in the medium term. What we have observed in Brazil is the opposite: the triumph of a catastrophic and moralizing rhetoric that does little to advance the development of effective mechanisms to deal with the problem.

Inquiry Nº 4781 is just the latest chapter in the succession of disproportionate and ineffective reactions which potentially violate rights. It strengthens the narrative that reduces the issue to its moral dimension, as if the punishment of malicious individuals made some objective difference in the fight against disinformation. In addition, the exceptionality that characterizes it and the support given by entities related to the legal area only contributes to the thesis that “anything goes” in the war against fake news.

Are you interested in learning more about this topic? You can do it by reading about disinformation and how the Brazilian Legislative branch has been approaching the issue in our blog post about it.

The views and opinions expressed in this article are those of the authors.