Superior Electoral Court regulates electoral propaganda for 2022 and prohibits disinformation with imprisonment detention

The Superior Electoral Court (TSE in portuguese) unanimously approved, in the administrative session of December 14th, 2021, the resolution for the electoral propaganda of the 2022 General Elections. The approved text establishes rules for the propaganda of candidates, parties, federations and coalitions on radio, television, internet, and the press.

Among other points, the draft prohibits the disclosure of “facts known to be untrue or seriously out of context” that affect the integrity of the electoral process, including voting and tallying of votes. The new resolution also punishes the broadcast of fake news or news containing insults, slander or defamation in order to benefit candidates, parties, federations or coalitions. The disclosure of facts known to be untrue to influence the election can be punished with detention from two months to one year and payment of a fine. The text also establishes punishment of detention from two to four years and a fine of R$15,000 to R$50,000 for those who hire third parties to send messages or comments on the internet to offend the honor or image of a candidate, party, federation or coalition.

The Superior Electoral Court (TSE) resolution also incorporates principles of the General Data Protection Law (LGPD in portuguese) determining the prohibition of bulk mailing  ciin instant communication applications, such as WhatsApp and Telegram, for people who have not signed up to receive them from contracting technologies or services not provided by the platform in violation of its terms of use.

The passage provides that the Electoral Court, based on a request from the Public Ministry, determines that the uninformative content be taken off the air and investigates criminal liability, abuse of power and misuse of the media.

Based on TSE Resolution 23.610/2019, which regulated electoral advertising, free time on radio and television and illegal conduct in the 2020 Municipal Elections, the rule approved today incorporated improvements and updated the rules for the election of the next year, mainly regarding to electoral advertising on the internet and through messaging apps. It also details how female candidates and black candidates will have access to airtime.

In the view of the founding partner of Di Blasi, Parente & Associados Paulo Parente, “at first, such measures attack the automation of sending fraudulent messages, respecting and enshrining the constitutional principle of freedom of expression, in which the individual have the right to speak and write and the recipient has the right to receive the truthful and authentic message. The year 2022 promises…”

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