The president of the Superior Electoral Court, Minister Alexandre de Moraes, ordered on Sunday (2) that the news portal O Antagonista remove from the air a report entitled “Exclusive: in a telephone intercept by the PF, Marcola declares vote for Lula. ‘It’s better, even being a rogue’”, published on the eve of the election. The preliminary injunction also established that the broadcaster Jovem Pan, the social media profiles of President Jair Bolsonaro, two of his children (Senator Flávio Bolsonaro and federal deputy Eduardo Bolsonaro) and supporters, such as federal deputies Bia Kicis and Carla Zambelli, remove related content, under penalty of a daily fine of R$ 100 thousand. Jurists heard by Gazeta do Povo consider that Moraes’ decision is serious, constituting a “flagrant violation of the Federal Constitution”.
The censored report featured transcribed excerpts from a conversation recorded by the Federal Police, in which drug trafficker Marcos Williams Herbas Camacho, aka Marcola, head of the criminal organization Primeiro Comando da Capital (PCC), declares his preference for Lula as president. “If you put one next to the other, Lula is better than him for us”, says Marcola in one of the listenings reproduced by O Antagonista. “Bolsonaro is a partner of politics, of the militia. Cara has no future. Lula is also without a future, but between the two, it’s not even possible to compare one with the other”, completes the prisoner.
In the injunction signed at 8 am on the Sunday of the election, Alexandre de Moraes classifies the report as “evident and extremely serious misinformation”. , clearly, the disclosure of a fact known to be untrue and out of context, which cannot be tolerated by this COURT, notably because it is false news released on the eve of the election”, completes the decision.
“There is a flagrant violation of the Federal Constitution in his decision, which, in its article 220, deals with this issue. and, which cannot be amended or amended”, states civil and social security lawyer Afonso Oliveira, a member of the Brazilian Institute of Law and Religion (IBDR).
According to the Constitutional text: “The manifestation of thought, creation, expression and information, in any form, process or vehicle, will not suffer any restriction, subject to the provisions of this Constitution. No law shall contain any provision that may constitute an obstacle to the full freedom of journalistic information in any media outlet (…) Any and all censorship of a political, ideological and artistic nature is prohibited.”
“There is no argument against the text of the Constitution law. His argument is subjective, superficial, in his decision that underlies the censorship, the removal of the air from the report under penalty of heavy fines”, he defends. “According to the Constitution, freedom of expression cannot suffer ‘any restriction’. If the report is slanderous, defamatory, lying, use the Civil and Penal Code. Slander, defamation, injury is a crime. So, the Judiciary should be resorted to for just reparation and, if the injury is proven, the Judiciary could, as a sanction, determine the exclusion of a publication. But a blow from a Supreme Court judge constitutes, for me, a serious violation of Constitutional Law”, reinforces Oliveira.
For the lawyer, Moraes’ argument about the fact being “ known to be untrue” is fragile. “Where did he conclude this, if the report reproduces the transcript of a judicially authorized PF listening to the head of the largest criminal organization in the country? The minister is an investigator, detective and prosecutor, but this is not unprecedented,” he says, referring to a decision by Alexandre de Moraes de 2019. At the time, the Supreme Court minister ordered Crusoé magazine and the website O Antagonista to remove an article that addressed the quote by the then President of the Court, Dias Toffoli, in the award-winning denunciation of contractor Marcelo Odebrecht to Operação Lava Jato.
Decision is worrying
In the preliminary injunction, Moraes adds that “the absence of veracity of the content regarding the alleged vote is liable to to verify” by the legal situation of Marcola, since those convicted by the Justice are with suspended political rights, therefore, “prevented from voting”.
For lawyer Rodrigo Duarte Garcia, specialist in public law and partner of the Duarte Garcia, Serra Netto e Terra law firm, the minister was skillful in appealing to a semantic controversy to determine that the report contained a fact that was “known to be untrue and out of context”. “Marcola, being in prison, cannot vote. But at no time did he declare his vote. This seems to me more of a Portuguese question than a legal one. Declaring vote and declaring support are not synonymous? What if they had written in the headline ‘declares support’? One thing is synonymous with the other”, he argues.
Garcia argues that the problem begins with the subjectivity of electoral legislation to define what is an untrue and decontextualized fact. “This is highly problematic because it could be anything. In other words, several precedents are being built in this sense, which will make the issue completely casuistic in the future, so that decisions contrary to freedom of expression are taken”, he laments.
The lawyer adds that, “when you start to discuss whether information is relevant, who controls whether it is relevant or not, any legal possibility has already been extrapolated”. “I find it complicated and worrying. A press agency can publicize a certain fact. Even the bodies that are reporting the TSE’s decision on the fact, it is necessary to verify if the Court does not understand that this is violating, which can generate a snowball around freedom of expression and of the press”, he says.
For Jorge Alberto Araujo, who is a labor judge in Rio Grande do Sul, decisions against freedom of expression are worrying, since what is at stake is a fundamental right to be preserved. “Freedom is a good that we have to privilege, especially when it goes against what we believe. Things that in the past were considered fake news, like heliocentrism, for example, later turned out to be true. Galileo himself was forbidden to talk about it at the time. Generally, new, revolutionary ideas emerge as a minority. This point worries me. To classify something as fake news, it needs to be very well grounded, it is not enough to say ‘it seems like a lie’”, he defends.
Araújo adds that the concern is even greater when the decision comes of a Supreme Court. “The Federal Supreme Court is the beacon. We, lower court judges, have to take what is decided there as a parameter for our judgments. So, this kind of decision ends up worrying”, he says.
Still on Sunday, Moraes signed a second injunction at 17h 17, alleging noncompliance with the first and determining the suspension of content from the Twitter and GTTR platforms; the imposition of a fine of BRL 15 thousand to “’O Antagonista’ (Mare Clausum Publicacoes Ltda), Cláudio Dantas, Flávio Bolsonaro, Kim Paim, Bernardo Kuster , Leandro Ruschell and Barbara Destefani (@taokei1)”, and the abstention, on the part of the cited ones, “to promote new manifestations about the facts dealt with in the present Representation in detriment of the candidate Luis (sic) Inácio Lula da Silva, in any means of communication, including on social networks”, under penalty of an individual and daily fine of R$ 30 thousand.
“ The indiscriminate reproduction of reports with the disclosure of facts considered to be true, when there was no search for the truth, cannot be allowed (…) must be restrained, as a way of protecting institutions and the popular will”, claimed Moares in the decision.