Ten days before the second round of the 2022 elections, the plenary of the (Superior Electoral Court), at the time under the presidency of the minister, approved a proposal to combat misinformation in the electoral process, regardless of requests from candidates or the Public Ministry.
Three and a half years later, it is still not known how many contents and profiles were suspended by the court based on these rules, nor what criteria justify processes related to this activity being kept confidential.
A portion of the , from a US Congressional committee, which included decisions from both the (Federal Supreme Court).
In a survey carried out by Sheetof 25 TSE processes mentioned in the document, 22 do not even have a record of their existence in the court’s public consultation, returning the result “no processes found”. Most do not have any record of their movements in the DJE (Electronic Judicial Diary).
In addition to the processes not being accessible to allow for more in-depth research by the press or academia, the court does not provide general quantitative data on how it acted based on the new standard.
Last April, the TSE denied a request for access to information from the Sheet which requested general data, such as the total number of posts, videos, profiles, accounts and groups blocked or removed based on the resolution, as well as the number of reactivated accounts. The court stated that it does not have “quantitative or qualitative categorization of removed links, channels and/or groups.”
In response to an appeal filed by the reporter, the court also said that there was no denial of access, but “only clarification regarding the lack of consolidated data in the form requested”. He also added that “data relating to actions that are being processed or have been processed under judicial secrecy are not made available for research open to the public, due to their sensitive nature or specific judicial determination”.
The response is signed by judge Andréa Pachá, general secretary of the court’s presidency, a post currently held by the minister.
A Sheet He also asked the court, via the press office, why there were cases in which confidentiality was removed and others that were not, in addition to the criteria used to do so, but there was no response.
Artur Pericles Lima Monteiro, doctor in constitutional law from USP (University of São Paulo), states that, although it is feasible that there are processes in which secrecy is justifiable, the current scenario, in which there is not even general data, is not adequate.
He states that the regulation adopted by the court with this resolution transitioned between the exercise of jurisdictional activity and police power (in which the Electoral Court acts as its administrative arm).
“This attachment to the application of the rules on transparency of judicial processes, without taking into account this hybrid nature of the TSE’s actions, is creating a scenario in which the constitutional duty of information is not satisfied”, he says.
Monteiro believes that it would be in the TSE’s own institutional interest to account for how it acted.
“The court is telling us that it did not even generate the necessary information so that an analysis of what happened in the 2022 elections based on this regulation could be carried out”, he assesses. “What was the impact of this, what were the successes, what were the mistakes?”
A Sheet still under Moraes’ management. The response at the time was that, “by court order, the procedures in question remain, until now, under judicial secrecy.”
Just like now, no specific information about the processes had been requested at that time.
After the second round of the 2022 elections, the court intensified its operations, amid a series of coup-oriented articulations and movements, including demonstrations that defended military intervention.
In 2024, already under criticism for lack of transparency, the TSE planned the creation of a repository of decisions on disinformation, with the aim of guiding other instances of the Electoral Court. It only contains decisions made in representations filed by a party, but no orders given in open ex officio procedures by the TSE.
For Carla Nicolini, who is an electoral lawyer and member of Abradep (Brazilian Academy of Electoral and Political Law), the court’s more proactive action was supported by the resolution that was approved. She questions, however, the lack of transparency.
“The point that draws attention is not the existence of these procedures, but the fact that some do not have any public traceability”, he says.
She states that there is a lack of clarity regarding the concrete criteria adopted to define the degree of access restriction in each case, as there are similar situations with different levels of publicity, and what are the criteria for terminating the measures.
“It is not clear at what point the court understands that the order is no longer necessary, nor if there is any type of continuous monitoring of the accounts involved or if the action is reactive, based on new occurrences.”
In different cases involving more prominent politicians or influencers, the accounts were reestablished by Moraes.
One of the profiles mentioned in the US Congress report, in an order from the TSE, and which remains unavailable in Brazil (according to notice from X, by court order) is @Fabiotalhari. This was one of several accounts that would have published, according to the order, a live broadcast by Argentine Fernando Cerimedo, responsible at the time for enunciating conspiracy theories without scientific basis about the polls.
Cerimedo itself, on the other hand, had its main unblocked by order of Moraes at the end of January 2023, as stated in another order in the report.
Very active on X and critical of the current government, Fábio Talhari currently uses another account on this network, which appears to have been created in November 2022.
In a post from January 2023, on his Instagram, he stated that his profile on X had been the target of an order from Moraes. The case in which he is cited, however, is one that cannot be found in the court search. THE Sheet He tried to contact Talhari, but received no response.
Of the three cases that appear in the US report and that are available in the public consultation, the first to have the confidentiality removed was that of then federal deputy Carla Zambelli, still in December 2022, when her profiles remained blocked.
The second, against Colonel Fernando Montenegro, was made public in . On that occasion, Moraes pointed out the end of “the political-electoral process” and the forwarding of a copy of the records to the STF and ordered the process to be archived along with the removal of secrecy.
André Boselli, coordinator of information ecosystems at the NGO Artigo 19, specialized in topics related to freedom of expression, says that it would be important to have more transparency regarding the court’s actions based on the 2022 resolution.
“It is a very extraordinary resolution, very specific, and which gives great power to the TSE itself. We are talking about a restriction on a fundamental right, which is the exercise of freedom of expression”, he says.
