Last Friday, Twitter and Facebook suspended the accounts of 16 pro-Jair Bolsonaro individuals under investigation for allegedly spreading fake news, obeying an order from the Brazilian Supreme Court. Researchers warn that this decision, upholding an initial request submitted in May, sets dangerous precedents for the discussion on freedom of expression in Brazil.
The accounts were suspended as part of the so-called Fake News probe, which is overseen by Supreme Court Justice Alexandre de Moraes. The investigation — which had already resulted in search and seizure operations back in May — looks into attacks against members of the Supreme Court and the spread of false information online.
In his decision, Justice Moraes argued that suspending these social media accounts was “necessary for the interruption of hate speech, subversion, and encouragement to break the institutional and democratic normality.”
Researchers consulted by The Brazilian Report warned that Justice Moraes’ latest decision sets a dangerous precedent that would allow punishment related to illicit content before it is even posted, in a form of prior censorship.
“The precedent is an order of prior restraint in the sense that you are suspending accounts not as punishment, not as a reparation measure, but as a measure for the future, that is before someone posts content that you might consider to be illicit,” explains Francisco Brito Cruz, director at Internet LabBr. As an example, Cruz creates a hypothetical situation by which a politician resorts to a trial court to suspend a political adversary on social media for illicit actions, the judge in charge may now grant him this right, using Justice Moraes’ decision as precedent.
Taking down social media accounts is an extreme measure, argues Priscilla Silva, Law and New Technologies researcher at ITS Rio. She explains that, in the case of a crime, the normal procedure would be the removal of a specific post. In order to justify the decision to suspend an account, the courts would have to prove there is an ongoing crime.
The researchers conclude that Friday’s decision breaks a cycle of positive precedents in relation to freedom of expression in Brazil’s highest court.
Fake new debate: content v. behavior
The problem lies in the idea of purely regulating content, rather than combatting specific damaging behaviors, said Cruz.
When there is a clear definition of the crime committed — for example, racist abuse — the content is punishable. But when it comes to fake news and disinformation, the boundaries are less clear and much more subjective, he explains.
Priscilla Silva argued that, while such decisions have legal grounds, Justice Moraes’ specific order on Friday failed to present a justification that elucidates the actual crimes committed.
“It does not tell us exactly which crimes these people committed on the internet,” says Silva. “It talks about hate crimes, but what is the legal article behind that?”
Political use of social media controls
Cruz argues that the political co-optation of social media control tools — such as suspending accounts — is already underway. This is aggravated by the fact that, in Brazil, access to the justice system is also unequal. “We know that certain sectors of the population, certain niches, have greater access to the Judiciary,” he said.
And Justice Moraes is not exactly a neutral umpire in this case. Fact-checking agency Aos Fatos showed that he is the target of choice of the far-right’s vitriol online, with 71 percent of negative posts about the Supreme Court mentioning him personally. At President Jair Bolsonaro’s orders, the Solicitor General’s Office filed a lawsuit to overturn the decision.
Silva explained the fake news inquiry has put the Supreme Court into a novel situation, where it is, at once, the victim, the accuser, and the judging body. “It is extremely problematic,” she says.