(May 1, 2018) On April 24, 2018, during a debate on “How Social Networks and Fake News Will Affect the Elections, Brazil and You” sponsored by a well-known Brazilian magazine, the president of the Brazilian Superior Electoral Tribunal (Tribunal Superior Eleitoral, TSE) and Minister of the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF), Luiz Fux, asserted that if false news is proven to benefit a candidate to the point of securing his or her victory in an election, that election can be annulled. (Leonardo Lellis, Luiz Fux: Eleições Podem Até Ser Anuladas por Causa de ‘Fake News,’ VEJA (Apr. 24, 2018).)
According to Fux, Brazilian law provides for the prevention of abusive advertising, and an advertisement aimed at destroying a candidate constitutes an abuse of power that can lead to the cancellation of the election. To avoid such a situation, the TSE has set up a committee that includes representatives of the Federal Police, Public Prosecutor’s Office, and Brazilian Intelligence Agency to prevent the proliferation of fake news, Fux said.
“Fake news ends up contaminating the political environment and wounding the democratic principle to death. Voting can be conscious only if it is preceded by accurate information about your candidate,” the minister said. (Id. (translation by author).)
Superior Electoral Tribunal
The Superior Electoral Tribunal (Tribunal Superior Eleitoral, TSE) was created by Decree No. 21,076 of February 24, 1932. (Decreto No. 21.076, de 24 de Fevereiro de 1932, Chamber of Deputies website.) Five years later, the Constitution of 1937 dissolved Electoral Justice, a specialized branch of the judiciary that deals with electoral issues, and assigned to the federal government (Union) the exclusive power to legislate on electoral matters. (CONSTITUIÇÃO DOS ESTADOS UNIDOS DO BRASIL (de 10 de Novembro de 1937) art. 16(XXIII), Chamber of Deputies website; Justiça Eleitoral, TRIBUNAL SUPERIOR ELEITORAL (last visited May 1, 2018).)
Electoral Justice was restored on May 28, 1945, with the enactment of Decree-Law No. 7,586. (Decreto-Lei No. 7.586, de 28 de Maio de 1945, art. 6, Chamber of Deputies website. See also História do TSE e da Justiça Eleitoral, TRIBUNAL SUPERIOR ELEITORAL (last visited Apr. 30, 2018).)
The TSE is the highest body of Electoral Justice and plays a fundamental role in the development and exercise of Brazilian democracy. Its main competences are established by the Federal Constitution (CONSTITUIÇÃO FEDERAL [C.F.] arts. 118–121, Presidency of the Republic of Brazil website) and by the Electoral Code (CÓDIGO ELEITORAL, Lei No. 4.737 de 15 de Julho de 1965, Presidency of the Republic of Brazil website).
According to article 119 of the Federal Constitution, the TSE must be composed of at least seven members who are chosen
I) through election, by secret ballot, with:
a) three judges from among the Ministers of the Federal Supreme Court;
b) two judges from among the Ministers of the Superior Tribunal of Justice; and
II) by appointment of the President of the Republic, two judges from among six lawyers of notable legal knowledge and good moral character nominated by the Federal Supreme Court.
The TSE must elect its President and Vice President from the Ministers of the Federal Supreme Court, and an Electoral Inspector General (Corregedor Eleitoral) from the Ministers of the Superior Tribunal of Justice. (C.F. art. 119 (sole para.).)
Except for a justified reason, judges of the electoral tribunals must serve for at least two years and never for more than two consecutive two-year periods, and their alternates must be chosen at the same time and through the same procedure, in equal numbers for each category. (C.F. art. 121(§ 2).)