The decision of the minister, the (Supreme Federal Court), this Monday (21), of the former president () on social networks has a newsroom that, according to experts consulted by Sheetconfuses about its amplitude.
This is because it opens room for discussion about which actors would be subject to restricting the former president’s interviews. According to experts, as the decision is written there would be the possibility of making a broader reading, which would include from allies near Bolsonaro to press vehicles and citizens.
More restrictive readings would involve, on the other hand, an understanding that the order was issued to prevent Bolsonaro from burning the decision to prohibit the networks – what it gives.
A third point of doubt is to whom such an order is intended and who could be punished as a consequence.
On Friday (18), Moraes also ordered the former president was forbidden to use “social networks, directly or through third parties.” The minister did not determine the blockade or suspension of the profiles, but prevented the former president from using them.
Already on Monday (21), Moraes gave a new order that states that this measure “obviously includes the broadcasts, relay or broadcasting of audios, videos or transcripts of interviews in any of the third party social networking platforms.”
He also says that Bolsonaro cannot “use these means to circumvent the measure, under penalty of immediate revocation and decree of prison.”
Hours later, he reaffirmed the decision, sending the former president to clarify for awarding the anklet to photographers and rendered “Speech to be displayed on digital platforms” during the afternoon in Congress.
The ban was determined as an alternative precautionary measure to arrest with the government of Donald Trump in defense of sanctions to Brazilian authorities.
Generally speaking, precautionary measures can be determined before any conviction, when there is a risk of damage in case of delay, with the purpose of avoiding the risk of further infractions, but without applying a more serious order, as would be the pre -trial detention.
In Friday’s decision, Moraes understood that one configures.
Insper Ivar Hartmann’s public law professor classifies the scenario brought by the Order as Draxtry and evaluates that the decision is ambiguous. In his assessment, the correct reading would be that it is not any disclosure of Bolsonaro interviews and videos that would be barred.
“He [Moraes] You are not saying that you can never interview transcription, you can never video. He is saying that the investigated cannot be used if these means to circumvent [a decisão]. This means that it has two types of interviews: there is the interview that circumvents the ban and has the interview that does not circumvent, “interprets Hartmann.
One of Hartmann’s differentiations would be the publication of an interview with questions from journalists from a mere dissemination of statements from the former president.
For the law professor, it is necessary to speak of censorship from the decision of Moraes. He sees as the main negative effect the self -censorship that order can cause to journalists. “The biggest problem is the self -censorship that the decision – for its ambiguity – cause.” He considers not only Bolsonaro, but third parties could be punished.
In a statement, Abraji (Brazilian Association of Investigative Journalism) claimed to be “always favorable to interviews of public interest”, but that said, “the terms of the judicial decision on the disclosure of interviews or statements of former President Bolsonaro are not very clear.”
Also according to the lawyer and professor of criminal law at FGV Raquel Scalcon, the decision is unclear about its amplitude.
She understands that the most plausible interpretation would be as restrictive as possible as to her reach. As a result, publications by third parties and the Bolsonaro interview press would not be covered, but only posts from the former president or profiles he would be “instrumentalizing”.
For Rachel, the order could not reach an undetermined list of people, but only those who are part of the process in question. She also points out that liability could only fall under Bolsonaro – with any determining determination in case of non -compliance.
With this, she also interprets that she would not be responsible for Bolsonaro for post about which he has no interference. “It seems to me that it has to have a determination of it [Bolsonaro]for a third to do [a postagem]. Because otherwise I think it’s unfeasible to impute him, “she says.
In addition to the ambiguity of the decision, Scalcon has a vision contrary to the possibility of imposing precautionary measures that are not literally provided for by law, as is the case.
In the assessment of Ana Laura Pereira Barbosa, Professor of Law at ESPM, the understanding of whether the disclosure of a Bolsonaro interview on social networks is forbidden will depend on the specific case.
“It all depends on if this is interpreted as a burla for the prohibition of using social networks,” she says. “But in my view this could not be used to prevent any interview replication through the press.”
She says that even if it comes to a press interview, there would be different situations with different gradations that could serve as a criterion to understand whether or not there was a slogan, how to be used as a direct channel for him to communicate or with questions asked by journalists.
“As much as this was not explicit in the decision, my view is that the prohibition of use of social networks is intended to avoid acts that favor the obstruction of justice, influence or attempt to influence the fate of court decisions,” she says.
In addition to the difference that Bolsonaro’s case is restricted to social networks and not to the prohibition of conducting interviews itself, Ana Laura makes a second distinction between the current case and the STF’s decision in 2018 to ban former President Lula from giving an interview from the prison. While in Lula’s case he was already convicted, it is now an alternative precautionary measure to prison to avoid further infractions.
