As occurred in the last election, the main rules on electoral propaganda in and use of should only be known a few months before the official start of the campaign, when the (Superior Electoral Court) finalizes the process of updating its resolutions in the first quarter.
In 2026, however, there is a difference in context: the general rules regarding the internet in Brazil underwent a major change with the judgment, last year, of the (Supreme Federal Court) — whose result predicted the , in which the rules of the electoral court were valid.
Now it is necessary to understand whether the TSE will maintain its rules as they are, leaving room for any gaps to be filled later, such as in the analysis of legal proceedings, or whether it will change them in order to make it clear at what points it is or is not close to .
Furthermore, with the consistent advancement of artificial intelligence, another open question is how far the court will be able to advance. In 2024, its main bet was the requirement that content produced with AI should be identified as such, but experts have pointed out that this is an insufficient scenario to curb abuse. Another relevant point that must be addressed is the role of influencers.
As he is vice-president of the TSE, he is responsible for leading this process – in the Supreme Court, he was one of the ministers who lost the trial on the Marco Civil.
The TSE also states that, from February 3rd to 5th, public hearings will be held on the resolutions and that the drafts with previews of the texts will be released from January 19th. After that, it will be up to the rapporteur to evaluate the suggestions and submit a final version for consideration by the plenary.
Until 2021, hearings were generally taking place before the end of the year preceding the election. In the last electoral cycle, 2024, they only occurred at the end of January. The minutes, however, had been released on December 20th.
Kassio was formally assigned to the task on December 16, in an order signed by the president of the court, the minister.
The Elections Law has, as a deadline for approval, March 5th of the election year.
Carlos Affonso Souza, professor at Uerj (University of the State of Rio de Janeiro) and director of ITS-Rio (Institute of and Society), assesses that, in 2024, the TSE had already made the network’s responsibility regime in the electoral context with a more rigorous format than what applied to general publications and that, with the STF’s thesis, it becomes clearer that the electoral can have its own rules.
He questions, however, whether and to what extent the Supreme Court’s decision will inspire changes in the TSE resolution. It highlights, for example, that, in the case of the STF, the responsibility for proactively removing certain content, such as hate speech and racism, is not due to individual content, but only due to systemic failure. In the electoral case, there is no such specification, for example.
Souza also sees a need for a reassessment of whether the AI rules approach, focused on identification, would be the most appropriate, in addition to pointing out the relevance of looking at checking methods adopted by social networks with user participation, such as X’s community notes.
Leader of research in technology, power and innovation at the Weizenbaum Institute, in Germany, Clara Iglesias Keller believes that it would be interesting for the resolution to seek alignment with the interpretation of the STF, guaranteeing legal certainty, “with a clear communication of the applicable rules”.
In her interpretation, it is linked to the Supreme Court’s decision, but it would be up to the TSE to establish how the criteria defined by the STF would apply to the electoral process. The expert says there are scenarios in which it may be challenging to decide which rule applies.
She also argues that it would be important for the resolution to define concepts that she sees as central, viral content and categories such as “systemic risk”.
Fernando Neisser, lawyer and professor of electoral law at FGV-SP, assesses, in turn, that there would not be a major impact of the decision on the Marco Civil on the electoral campaign. “I think so, there is a gray area, but a gray area that already existed.”
He argues that previously there was already, in a way, a competition of “systems” of rules to be applied, depending on the content, the moment of publication and the actor responsible for it.
In the case of AI, he sees it as important for the TSE to look at other actors, in addition to social networks, such as companies that provide tools for generating content.
For Paloma Rocillo, director of the Internet and Society Reference Institute (Iris), says that if before there was a diagnosis that the Electoral Court needed to delimit and not exceed its regulatory powers, today the scenario is different, given the way in which the electoral issue was treated by the Supreme Court in the Marco Civil trial. “It requires a regulatory complement that will not come from Congress.”
Looking at what was done in the 2024 municipal election, she sees the reports presented by networks to the Electoral Court as one of the main gaps, as she considers them very superficial, and defends that companies should also be transparent regarding how they are or are not identifying content with AI.
She also highlights that she saw the reporting system created by the TSE as inefficient.
