Luis Roberto Barroso

Recap of Fair Elections in the Age of Fake News: Lessons from Brazil

“We are a plane that had its turbulence, but we will land safely”

President of the Brazilian Superior Electoral Court (TSE) and Justice of the Federal Supreme Court (STF), Luís Roberto Barroso shared his views on Brazilian democracy, and the role of the judiciary to secure fair elections in an age of fake news

Part of The Outlook for Brazilian Democracy series organized by CLAS and cosponsored by the Chicago Center on Democracy

by Fernando Miramontes Forattini, Doctoral Candidate, History, PUC-SP/Visiting Student, UChicago

Democracy at risk

Justice Luís Roberto Barroso is one of the leading voices on combating fake news and protecting the electoral process and Brazilian democratic institutions, for which he is constantly the target of attacks by Brazilian President Mr. Jair Bolsonaro and his followers. As CLAS Director Ben Lessing reminded the audience, Brazil recently experienced dangerous moments of instability to its democracy, including protests asking for military interventions, some with the participation of Bolsonaro; armed forces demonstrations in front of Brazilian Congress and High Court trying to exert political pressure; and many others.

Barroso called these events a test for Brazilian democracy. According to him, democratic constitutionalism, the prevailing ideology in the 20th century, is currently in peril in most parts of the world due to the conjunction of three political factors: rising authoritarianism, extremism, and populism. Political agents that harness these three characteristics often divide society, and attack the basis of democratic constitutionalism, targeting the checks and balances system, rule of law, respect for fundamental rights, and free elections.

According to Barroso, extremist and authoritarian populism uses similar strategies when they seek to establish themselves by attempting to coopt the legislative and judiciary, but when failing to do so, they attack these institutions, especially high courts and electoral authorities. Also, they exert direct communication with their supporters through social media, undermining the role of institutions and traditional media:

[Some] of the main tools these movements have deployed are disinformation campaigns, hate speech, slander, lies, and conspiracy theories…that undermine free and fair elections because fake news deceives the voters, violates fundamental rights, and diminishes free speech by tainting the public debate.

Social media as a game-changer

Barroso highlighted social media as a major consequence of the digital revolution, and the main source of information for most people in the world. In Brazil, almost 79% of the population utilizes WhatsApp (the most used social application by Bolsonaro to spread fake news in the 2018 election) as its main source of information. In contrast, television comes in a distant second with 50%, and print media is used by only 8% of the population (link).

This represents a big shift in Brazilian politics, since before the 2018 election one of the biggest factors for political arrangements was the television time available during the campaign season (which is free, but depends on the size of the party’s coalition presence in Congress). However, in 2018, Bolsonaro won with the one of the lowest amounts of television time. The difference, said Barroso, is that Bolsonaro used social media in a more “professional way” than other candidates.

The truth is that the Electoral Justice, the legislation, the case-law, the administrative rules that govern the elections, no one was prepared for this new reality, even though one could see it was coming from what happened in Brexit voting and the American elections.

Regulation of social media

If initially the idea was that the internet should be a free and unregulated space, now there is a consensus in Brazil for better regulation on at least three levels: a) economics; b) privacy; c) content control—the latter being a key issue for Barroso since it requires an adequate balance between freedom of expression and repression of inauthentic and illegal behavior.

For him, TSE’s recent success in the 2020 election came from identifying the following targets related to content control:

  1. inauthentic behavior, such as the use of bots, fake profiles, and hired professionals, that solely aims to forge engagement and create some sort of validity to fake news or support for political actors or certain issues.
  2. Illegal content, like child pornography, terrorism, hate speech, and anti-democratic attacks.
  3. disinformation, the proliferation of fake news for personal gains, causing harm to political institutions.

For the Brazilian Justice, the focus of any regulatory attempt should be modulation. Legislators should create clear and specific regulation that could provide the necessary and adequate parameters for self-regulation from digital platforms, minimizing the presence of the state in private matters, and guaranteeing an immediate and adequate response to any violation.

These criteria for self-regulation should be based on the principles of transparency, regarding the platforms’ policies; due process, with some form of appeal from the platform's decisions; and fairness, i.e., not to be banished for reasons of gender, race, or political and religious preferences. However, foreign companies without any type of attachment to Brazil are still a problem for TSE, like the application Telegram, popular with Bolsonaro’s followers.

We need platforms to act with transparency, respecting a minimum of due process, and acting in fairness to avoid any forms of discrimination.

Actions to curb fake news

To attain such a level of regulation, the collaboration from these platforms is essential. If, during the 2018 election they were not as cooperative as needed, in the 2020 elections they had a change of heart.

Barroso described the actions taken by TSE during the 2020 election as a “warfare operation” to convince voters to go to voting sites during a pandemic, obtaining the number of 130 million voters (over 75% of eligible voters).

Another challenge was to fight misinformation. This was made possible through immediate responses to questions about the validity of the Brazilian electronic voting system, and by cooperating with major social media platforms to exert continuous monitoring of social media behavior in search for inauthentic behavior. Also, TSE established alliances with major fact-checking companies in Brazil and traditional media outlets. Finally, social education was one focus to address the issue of what is fake news, how to identify it, and how to avoid passing it along.

Panelist questions

When asked by Brodwyn Fischer (History) about the recent shift/augmentation in the role of the judiciary in the political arena in Brazil, sometimes elevating judges as political figures and celebrities (e.g., Sérgio Moro), Barroso highlighted that this expansion of roles is not something new in Brazilian history. Due to the descriptive nature of the Brazilian Constitution (1988), almost any topic can become subject of litigation, especially due to direct actions instruments. STF also judges criminal cases and, combined with the fact that every moment of STF is televised, this would automatically make high court justices public figures.

Regarding the need to build Brazilians’ trust in the electoral process, a point raised after Susan Stokes (Political Science) commented on the dangers faced in democratic countries like Brazil and the United States, Barroso explained that not only have electoral results never been contested since the use of the electronic voting system, but the only person who still questions the results is also the president who won the election—perhaps as a strategy for possible unwanted electoral results in the future. The electronic system is audited by every political party, and it is not connected to any network, making fraud nearly impossible. Over 72% of Brazilian voters trust the system.

When answering Tom Ginsburg (Law School), Barroso said he is confident that there is a way to improve congressional engagement on regulations on social media and helping them not to spread fake news. To achieve such a goal, he needs more time to talk with politicians and seek new ways to address the political framework and party fragmentation, while providing more access to minorities to reach Congress. However, the pandemic and the constant attacks on Brazilian democratic institutions derailed his intentions.

Military tutelage and intervention

Regarding the appointment of General Fernando Azevedo e Silva as director of the TSE, Barroso said that despite not being up to him to choose the director position, he does not see it as a form of tutelage. On the contrary, it is an antidote, for he would provide security between the armed forces regarding the electoral process. “There is no risk of military intervention in Brazil.”

Stronger democratic institutions

Barroso believes that Brazilian institutions learned a lot from these “tough times” and that “they are capable of resisting and preserving the democratic system.” He is sure that Brazil “is going to have a free and clean democratic election,” and that this is a passing moment in Brazilian political history that will just strengthen its democracy: “we are a plane that had its turbulence, but we will land safely.”


Further Reading

Barroso’s latest article on fake news and democracy (01/10/2022): O ódio, a mentira e a democracia (Hate, Lies, and Democracy), at IberICONnect. (PT)

Barroso (2018). Counter-Majoritarian, Representative and Enlightened: The Roles of Constitutional Courts in Democracies (ENG)

Barroso will meet to discuss use of Telegram and app can be banned from Brazil (01/19/2022, PT)

Bolsonaro and his supporters turn to Telegram to avoid being silenced for spreading fake news (01/15/2022, ENG)