President Luiz Inácio Lula da Silva created the National Prosecutor’s Office for the Defense of Democracy to represent the government in the fight against “disinformation about public policies”, without, however, the Brazilian legal system defining the concept of disinformation. Critics of the decree see the risk of arbitrary assessments in the body linked to the Advocacy General of the Union (AGU), which has the function of defending the interests of the government before the Justice.
Despite the legal loophole, disinformation, for the AGU, is “voluntary, intentional lying, with the clear objective of harming the correct execution of public policies with prejudice to society and with the objective of promoting deliberate attacks on members of the Powers with lies that effectively hinder the exercise of their public functions”. In a note, the folder said that the provisions of the decree will still be regulated.
The creation of the Attorney’s Office, announced on Monday, 2nd, by Advocate General Jorge Messias, raises the debate on the power of the government. The term has already been discussed during the course of the fake news bill, but, with the proposal stuck in the Chamber since 2021, the legal institute has not advanced.
“I have maintained that disinformation must be fought with two axes: intentional disinformation, with the creation of fake news, by the Public Prosecutor’s Office and by Justice, including criminal justice; and the disinformation itself, involuntary, with a lot of information. None of these axes seem to suit public law well,” said Floriano de Azevedo Marques, professor of Public Law at USP.
The Lula government has already presented initiatives for what it calls confronting fake news. At the Planalto Palace, there will be a structure to combat disinformation and hate speech on social networks, the Secretariat for Digital Policies. In the campaigns, however, both Lula and Jair Bolsonaro applied low blows and were forced by the Superior Electoral Court (TSE) to remove pieces deemed uninformative from the air.
Democracy
The defense of democracy is a consensus among specialists, but there are exceptions to PT attacks. “Care must be taken to ensure that there is no overlap with the other control bodies of democratic institutions. Added to this is the fact that we do not have a defined legal concept about ‘disinformation about public policies’, nor is there even (consolidated) judicial guidance on this”, said Alexandre Wunderlich, lawyer and professor of Criminal Law at PUC-RS.
I have maintained that disinformation must be fought with two axes: intentional disinformation, with the creation of fake news, by the Public Prosecutor’s Office and by Justice, including criminal justice; and the disinformation itself, involuntary, with a lot of information. None of these axes seem to fit well with public law.
Floriano de Azevedo Marques, Professor of Public Law at USP
The professor of Constitutional Law at FGV Roberto Dias said that the AGU will have to establish distinctions, “in the most objective way possible, of what is misinformation and criticism, which is disagreement and the explanation of errors by the public power in the elaboration, planning , in the execution and evaluation of public policies”. The final word, according to him, however, will be the Justice.
Asked about the motivation for the decree, the AGU stated, in a note, that “disinformation and lies are different from the sacred benefit of freedom of expression”. “Under no circumstances is there the slightest possibility that the AGU will act contrary to freedom of expression, opinion and the free exercise of the press,” the agency said.
political weapon
For the professor of Communication, Media and Democracy at the University of Glasgow, Patrícia Rossini, ways of combating the use of disinformation as a political weapon still need to be established – a global challenge. “The discussion has much more future thinking about reach, impact and influence (of fake news) than defining types of content or levels of falsehood or truthfulness that would determine what would be in the scope of a policy to combat disinformation”, she said.
Under no circumstances is there the slightest possibility that the AGU will act contrary to freedom of expression, opinion and the free exercise of the press.
Attorney General of the Union (AGU), in a note.
For now, according to Lula’s decree, it is up to the AGU body to represent the government, “judicially and extrajudicially, in demands and procedures for responding to and confronting misinformation about public policies.” The text also says that it is up to the Attorney General’s Office to “promote inter-institutional articulation for sharing information, formulation, improvement and integrated action for its performance”. In addition, the body must “plan, coordinate and supervise the performance of the bodies of the Attorney General’s Office in activities related to the representation and judicial defense of the Union in electoral matters”.
one step back
According to Professor of Electoral and Digital Law at Universidade Presbiteriana Mackenzie Diogo Rais, the debate should take a step back. “Perhaps we are concerned with legally defining what disinformation is, but we have not been concerned with making a distinction that is fundamental about whether that certain content refers to a fact or an opinion,” he said. Rais stated, however, that nothing prevents the AGU from dedicating itself to the topic: “The Attorney’s Office’s specific role is to file requests. The difficulty of defining specifically does not remove the claim”.
Political scientist Emerson Cervi, from UFPR, stated that the AGU should act strictly on issues related to public policies. “It is not up to the government body to sue anyone about general misinformation, but it is an obligation to clarify public policies. There is clear competence,” he said.
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