2024 is a “super-election year,” according to UNESCO: 2.6 billion people will go to the polls this year around the world. In Brazil, around 160 million people are expected to vote in the municipal elections that take place in October.
A recent report by the Brazilian Association of Investigative Journalism (Abraji, for its acronym in Portuguese), though, highlights a problematic trend during Brazilian elections, with a direct impact on democracy and press freedom: lawsuits filed by candidates and political parties asking for the removal of journalistic and informative content related to the electoral process.
The report “Lawsuits against Journalists in the 2022 Elections: How do censorship and judicial harassment affect political processes and Brazilian democracy?” was published by Abraji in mid-December. The study was carried out through Ctrl+X, an Abraji project that monitors the removal of content and judicial harassment against journalists. Researchers Marianna Haug and Rachel Drobitsch focused on Electoral Court lawsuits against journalists and media outlets. These legal cases requesting the removal of content “may have, in some way, changed the course of the electoral campaign” in 2022, according to the report.
The study found that, compared to the 2018 general elections, there was a 14% increase in the number of such lawsuits in 2022 – from 218 to 249. According to the researchers, “the vast majority of lawsuits dealt with topics such as disinformation, freedom of expression, defamation of politicians and equal treatment of candidates and in the electoral process.”
At least a third of the content targeted by the lawsuits was removed. According to the researchers, “it is increasingly up to the judiciary to define the contours of journalistic freedom and control over what can or cannot affect the electoral process.”
Letícia Kleim, legal assistant at Abraji and reviewer of the report, told LatAm Journalism Review (LJR) that the Ctrl+X project, which has existed since 2014, has historically recorded an increase in the number of lawsuits requesting removal of content in election years.
“This makes us look more closely at these electoral processes, because we understand that the electoral period is when journalistic information – investigations, articles and reports – have the most collective and social impact in the defense of democracy. The fact that citizens do not have access to journalistic information during this electoral period can cause great damage, because this can affect the decisions that the population will make at that moment,” Kleim said.
Drobitsch noted that many of these lawsuits do not progress through the courts after the end of the electoral period, as they concern disputes related to the election and lose their raison d'être after the elections. Therefore, decisions taken by the Electoral Court in this context tend to be definitive.
“Any type of removal [of content], whether in granting a decision on the merits, in a sentence, or even in a preliminary decision within a Regional Electoral Court or the TSE [Superior Electoral Court] is extremely important, because generally this content will be removed forever,” Drobitsch told LJR.
The state of Amazonas, in northern Brazil, accounted for almost 25% of the total number of cases analyzed (62). Although it is the largest state in Brazil by size, it contains less than 2% of the country's population, with most of its territory covered by the Amazon Rainforest. Still, it was the state with the highest proportion of removal lawsuits seen by the courts: 35.5%, above the national rate of 33.7%. In other words, in this state, the Court granted the most requests from candidates and political parties to remove content.
Amazonas was also the state with the most lawsuits of this type in the 2018 elections (15.6%). At the time, Jair Bolsonaro, who won the presidential election, was the politician who took the most legal action against media outlets asking for the removal of content in the whole country. In 2022, three candidates for the government of Amazonas were the politicians with the most requests for content removal in the country: Carlos Eduardo de Souza Braga (11.4% of the total), Amazonino Armando Mendes (4.5%) and Wilson Miranda Lima (2.8%), who was re-elected and is now the state governor.
Among the examples cited in the report are the “repetitive lawsuits” filed by Mendes requesting the removal of content about his health status. The then-candidate, with a long political career in Amazonas, was 82 years old during the electoral campaign and some Amazonian media published articles about his alleged “poor health.” In the database of lawsuits analyzed in the report, LJR identified at least 10 of these lawsuits.
Mendes was not elected. At the end of November, less than a month after the second round of elections, he was hospitalized in São Paulo. In February 2022, Mendes died in the hospital at age 83.
In addition to Amazonas having the three politicians who most filed this type of legal action in the 2022 elections, the report also highlighted the fact that the state has a judiciary “that meddles more in media control,” as Drobitsch said.
“What we tried to highlight [in the report] is the fact that it is not only the unilateral action of politicians, but also the Amazonas courts have a greater number of requests granted,” the researcher said. “If it were an action only by the politicians who sue the most, we could say that it is due to some localism (...), but we see the stance of a judiciary that also grants requests and ends up acting as a greater monitor of the press, almost like a censor of media content,” she said.
Haug noted that compared to other states, including São Paulo, the most populous state in Brazil, the judiciary in Amazonas appears to have greater weight in “defining the direction of the elections.” Furthermore, “disputes about the [Amazonian] forest, about the environment, were heavily discussed in these elections and were a real field for political strategy disputes, so perhaps [Amazonas] would be a space more sensitive to this,” she said.
Kleim said that results presented in the report raise the alarm about the potential use of lawsuits to silence the press during the municipal elections in 2024.
“We have observed higher numbers of lawsuits in election years, that is, the tendency is to have a large number of lawsuits also [in 2024]. I think that discussions about disinformation and the use of artificial intelligence may appear in these lawsuits, which become more complex every year,” she said.
The debate on disinformation was present in the arguments of electoral court judges to grant or reject lawsuits related to the 2022 election, the report noted.
In cases where the courts authorized the removal of content, the judges' main allegation was that it was “disinformation or fake news.” In cases where requests to remove content were denied, the main justification was that it did not consist of “news proven to be false or disinformation.” According to the report, the judges in these cases argued that “the defense of freedom of expression is necessary and that the judiciary cannot play the role of monitoring and supervising the press, as it violates a constitutional right.”
These lawsuits have moved “political debates on the social function of the media to the judiciary,” according to the report.
For Drobitsch, the Brazilian judiciary needs “clear guidelines” to judge cases that affect freedoms of the press and expression.
“Every time a case that is permeated with subjectivism is taken [to court], it is not judged based on clear guidelines and the content is removed, they are affecting journalistic freedoms of expression, of information, of the press. And then we have to think: what type of voter do we want in the coming years?” she asked.
“I believe that the Supreme Electoral Court will be increasingly incisive, including [in 2024] after the anti-democratic acts [of Jan. 8, 2023, when supporters of former president Jair Bolsonaro invaded and vandalized Congress, the Federal Supreme Court and the Presidential Palace]. I think the trend is to have a more active Supreme Electoral Court, and we need to ask ourselves how this is good and how this is bad.”