Request against president talks about holding him accountable for propagating “disinformation”; AGU’s anti-fake news body still does not act
The AGU (Advocacy General of the Union) analyzes what response it will give to a request to hold the president accountable Luiz Inacio Lula da Silva (EN) for allegedly propagating “disinformation” when calling “coup d’etat” The impeachment from the former president Dilma Rousseff (PT), in 2016.
The request came from the deputy Kim Kataguiri (Brazil-SP Union). The congressman called the National Prosecutor’s Office of the Union for the Defense of Democracy, an AGU body established on January 1. One of his attributions is the “tackling misinformation about public policies”.
The Public Prosecutor’s Office has been the target of criticism from experts for lack of clarity about its role. The agency is not yet operational. A working group acts to regulate the unit within the AGU.
Lula said on January 23 that Dilma’s impeachment was a “coup d’etat”. The petista spoke during an event in Buenos Aires. He was alongside Argentine President Alberto Fernández and former Bolivian President Evo Morales.
“You know that after an auspicious moment in Brazil, when we governed from 2003 to 2016, there was a coup d’état. Comrade Dilma Rousseff was overthrown with an impeachment. The 1st woman elected president of the Republic of Brazil”, declared Lula at the time.
Watch the moment Lula mentions the “coup” (9min10s):
The term “coup” it also appeared on official government channels. In text on the Plateau website about the new management of EBC (Empresa Brasil de Comunicação) there is the following mention:
“The Minister of the Social Communication Secretariat of the Presidency (Secom), Paulo Pimenta, also indicated four other women for the transition process at the EBC, who will assume advisory or management positions: Rita Freire, president of the Board of Trustees of the EBC who was impeached after the coup from 2016; Juliana Cézar Nunes, a company employee; and journalists Nicole Briones and Flávia Filipini.”
In the representation, signed on January 26, Kataguiri and the councilor of São Bernardo do Campo (SP) Glauco Novello Braido (PSD), call for the opening of “judicial procedure” against Lula for “hold him accountable for his grave acts”.
As the body has not yet been regulated, there is no definition of what measures should be taken when the Public Prosecutor’s Office is called upon in cases of alleged misinformation. Read more about the Attorney General’s Office and its regulation below in this article.
To Power360the AGU press office said that the representation against Lula “is under review” and which will be answered “like any parliamentary request that arrives at the house”. The deadline is 15 days.
Read the full text of the AGU note, sent at 11:39 am on 28.jan.2023:
“The representation is under review. The National Prosecutor’s Office of the Union for the Defense of Democracy is not yet operational. At that time, there is a working group set up to regulate the unit. The AGU has its competences defined by law and acts normally. The deputy’s request will be analyzed and answered like any parliamentary request that arrives at the house. Up to 15 days”.
big techs in sight
On another front, the Lula government intends to frame content considered illicit posted on social networks. THE “democracy package“, presented by the Minister of Justice Flavio Dino (PSB) to President Lula, provides for an MP (Provisional Measure) that creates obligations for digital platforms to remove criminal content.
The norm should not take care of cases like Lula’s speech about “coup”since it will focus on posts that refer to conduct already typified as a crime in the Criminal Code.
The project was delivered on Thursday (26.jan) and will be discussed among members of the government before being presented by Lula to the Legislative. The objective of the measures would be to combat the organization of attacks such as those of January 8th.
The Provisional Measure studied by the government “creates obligations for platforms with regard to crimes” about the maintenance of publications considered illicit.
The MP provides for the imposition of the withdrawal of publications that are considered crimes against the Democratic State of Law or terrorism. The suspension of content, determined by the Judiciary, must follow the practice adopted by the TSE (Superior Electoral Court), which establishes a period of 2 hours and the imposition of a fine.
According to Dino, the MP is not a criminal law, that is, it would not create new crimes. “It is not a regulation of the internet, it is not something that is confused with the topic of fake news in general”said in interview to journalists on Thursday (26.jan).
As explained by the minister, the norm will focus on prohibiting social networks from maintaining criminal content, already typified in the Law for the Defense of the Democratic State of Law (Law nº 14.197/2021) or in the Anti-Terrorism Law (Law No. 13.260/2016).
Dino illustrated this framework with a hypothetical example:
“Is it possible for someone to put a kiosk in Park Shopping in Brasília and say ‘here I teach how to make bombs’? Of course not, and the mall would be blamed. This company could not give up its space for this type of disclosure of the preparation of a crime”.
According to Dino, the norm aims to “prevention and compliance with content removal measures”. According to him, there may be sanctions and fines for big techs.
“We are not talking about anti-democratic posts in general. We are dealing with posts that specifically correspond to the crimes typified in the Penal Code and in the terrorism law”, stated.
REGULATION
On January 20, the government created a working group to discuss the regulation of the Attorney for the Defense of Democracy. The concierge (full – 91 KB) is signed by the Advocate General of the Union, Jorge Messias.
According to the text, the working group has the “purpose of obtaining subsidies and contributions from civil society organizations and public authorities to assist in the preparation of regulations for the National Attorney of the Union for the Defense of Democracy”.
The regulatory proposal will be submitted to public consultation.
The group will consist of:
- the Attorney General of the Union, who will chair it;
- 2 representatives appointed by the Advocate General of the Union;
- 1 representative of the consultancy general secretariat.
One representative, holder and alternate, appointed by:
- Ministry of Justice and Public Security;
- Ministry of Human Rights and Citizenship;
- Secretariat of Social Communication of the Presidency of the Republic;
- National Council of the Public Ministry;
- National Council of Justice;
- Brazilian Bar Association;
- Brazilian Association of Radio and Television Broadcasters;
- National Association of Journalists;
- Brazilian Association of Investigative Journalism;
- Brazilian Press Association;
- National Federation of Journalists.
From the academic and scientific community will participate:
- Ademar Borges de Sousa Filho;
- Alaor Carlos Lopes Leite;
- Daniel Sarmento;
- Gustavo Henrique Justino de Oliveira;
- João Gabriel Madeira Pontes;
- Juraci Lopes Mourão Filho;
- Leonardo Avritzer;
- Marcelo Cattoni de Oliveira;
- Mauro de Azevedo Menezes;
- Martonio Mont’Alverne Barreto Lima;
- Marcus Aurelius Ruediger.
The AGU and the president of the group may invite members of other bodies or private bodies, checking agencies and the Judiciary to attend meetings.
ATTORNEY
The Attorney General of the Union, Jorge Messias, announced on January 2 the creation of the National Attorney of the Union for the Defense of Democracy. The powers of the new prosecution are set out in the Decree No. 11,328 of January 1, 2023 –complete on here (2 MB).
The document, however, does not explain the criteria that will be used by the area to define what would be legitimate information or “fake news”. It also does not detail how the structure of the new prosecution will be and what methodology for monitoring the facts will be used.
THE Power360 sought the AGU on January 3 to ask for details on the performance of the new prosecution in the “tackling misinformation about public policies” and based on what criteria this will be done. The digital newspaper also got in touch to find out:
- what will be the structure of the new prosecution and who would be its attorney;
- whether there will be any kind of monitoring of what is classified as “disinformation” or whether the organ will act only when provoked;
- whether there will be a manual that will define what it is “disinformation”.
To Power360the institution replied, in a note sent on January 4, that it will consider it as disinformation “untrue or supposedly out of context facts brought to public knowledge on a voluntary basis with the aim of jeopardizing the proper execution of public policies, with real harm to society”.
The organization also stated that “under no circumstances will the National Prosecutor’s Office of the Union for the Defense of Democracy restrict opinions, criticize or act contrary to the public freedoms enshrined in the Constitution”.
The criteria used to define what are “facts that are untrue or supposedly out of context”Nonetheless, are vague and leave room for any kind of interpretation.
According to the note, the AGU will take into account precedents established in decisions of the STF (Federal Supreme Court) on the subject –without citing examples– and all demands will be taken to the Judiciary.
Yet the concepts of the judiciary are similarly vague and conceptually imprecise.
Here are 2 recent examples below:
- Speech by former STF minister censored – in October 2022, the TSE (Superior Electoral Court) censored a speech by Marco Aurélio Mello in an electoral program of the then president Jair Bolsonaro (PL). The Court based itself on a decision that prohibited calling Lula a “thief” or “corrupt”. However, in the deleted part of the commercial, the former STF minister does not use such terms. He says that the Supreme Court did not acquit the petista, but that he had the processes annulled to restart in other instances;
- “informational disorder” – Also in October 2022, TSE Minister Ricardo Lewandowski popularized the concept of “desordem informational. The magistrate was unable to clarify what this formulation was about, which does not exist in the law. He just said, when censoring a video he hadn’t even watched, that he considers “serious the ‘informational disorder’ presented. And, as such, capable of compromising collective self-determination, the free formation of the voter’s will”.
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