Opinion: with Telegram case, Fake News inquiry inaugurates in Brazil sentence without defense

By Hugo Freitas

(Opionion) During the military dictatorship, texts in newspapers were famously replaced by cooking recipes.

At the time, prior censorship was practiced, with the content being subjected to state control before publication; rejected excerpts were submitted to the expedient by choice of the publications as a form of silent protest.

In Brazil 2023, Justice Alexandre de Moraes repudiates such expedient: his decisions frequently discuss how unacceptable prior censorship is.

However, this apparent deference to freedom of expression is empty because it does not represent any renunciation of action on his part.

After all, in any case, the Judiciary would never make prior censorship since this type of activity is beyond its powers.

It is a task of the Executive.

Instead, the Justice’s condemnation of prior censorship serves only as a rhetorical antechamber to immediately afterward contrast it with subsequent control, which he thus legitimizes as compatible with democracy.

In a happy coincidence, the posterior control has the characteristic of being a tool placed, in democracies, in the hands of judges, such as Justice Alexandre de Moraes himself.

Subsequent judicial control is indeed compatible with democracies, as the Justice states.

But it would be an illicit logical leap from there to infer that any further control is compatible with democracy.

This was demonstrated in a decision handed down on Wednesday (10) by Justice Alexandre de Moraes.

This decision shocked even the staunch supporters of the STF’s End of the World Inquiries.

As it appears from the decision, the minister learned of a fact from a newspaper – that Telegram had sent a message to its users speaking against the PL 2630/20, or Fake News Bill, and asking users to campaign with their parliamentarians to reject the proposal – and simply issued a decision ordering the application to remove the message from the air within the short period of one hour.

In case of non-compliance, a fine of R$500,000 per hour and temporary suspension of Telegram’s activities in the country.

If Brazilian users decide to use VPN (Virtual Private Network) to circumvent the ban, accessing the application as if they were abroad, the Justice stipulated a fine of R$100,000 per hour.

Regardless of the fulfillment of his orders, he determined that the Federal Police should hear the representatives of Telegram in Brazil.

NO DEFENSE

Not satisfied with these measures, the Justice, who acted without being provoked (which is forbidden by law for a criminal judge) and who did not have any particular legal authority among all Brazilian judges to act in the case, despite all this, deemed it appropriate to write in his handwriting a message to be obligatorily sent by Telegram to all its users, replacing the other one, under penalty of these drastic punishments.

The message is worth reproducing in its entirety, with the parts in capital letters according to the original:

“By determination of the SUPREME FEDERAL COURT, the company Telegram communicates: The previous message from Telegram characterized FLAGRANT and ILLEGAL DISINFORMATION offensive to the National Congress, the Judiciary, the Rule of Law and the Brazilian Democracy, because it fraudulently distorted the discussion and debates on the regulation of social network providers and private messaging services (PL 2630), in an attempt to induce and instigate users to coerce parliamentarians.”

Thus, if before Brazil lived in the situation where texts were defiantly replaced by cake recipes before publication, in the new scenario (if the created precedent is repeated), the texts “attacking” the occupants of the powers (to use Moraes’ word) will soon be published, but, in a matter of hours, they should be replaced by humiliating retractions, written in hyperbolic language.

In these retractions, those involved, on pain of fines of millions of dollars, banishment from the country, or perhaps (if they are natural persons) imprisonment for the crime of disobedience, will be coerced by the State to confess in public to crimes that do not exist.

Let us emphasize, this will happen before they have even had any chance to defend themselves against the accusation, despite Article 5, LVII of the Constitution guarantees that “no one shall be considered guilty until a sentence has been passed in a court of law.

If the Fake News Inquiry was previously notable for (illegally) giving up the figure of the prosecution – a role that was concentrated in the figure of the judge, apparently without concern that this might compromise his or her exemption to judge – now, possibly for the first time, it eliminates the defense as well.

“REPARATIONS”

This is no exaggeration, as evidenced by the transcription of an excerpt from the decision of Justice Alexandre de Moraes:

“ABSOLUTELY NECESSARY THE IMMEDIATE CESSATION OF THE GRAVIOUS INJURY TO THE DEMOCRATIC STATE OF LAW AND ITS REPAYMENT” (uppercase, according to the original).

Although it may go unnoticed to laymen’s ears, to a jurist, the presence of the word “reparation” is very striking.

It is, by nature, a final judgment, the ultimate goal to be achieved by a process: only after the accusation, the defense, and all the proper proceduresStatehe State in a position to decide on guilt or innocence and impose the sanctions provided by law.

These may include, precisely, the victim’s reparation for damages.

This reparation, in crimes against honor (which do not include the nonexistent crime of “misinformation”), can even consist in the publication of a retraction, but never before the accused had a chance to defend himself.

As is well known, there are many cases in which the judge makes decisions against the accused at the beginning of criminal proceedings.

However, these are preventive; that is, their purpose is to safeguard the course of the case against conduct by the accused (for example, the concealment of evidence or the intimidation of witnesses) or even to prevent the accused from repeating the crime.

In other words, the function is prevention, not “redress” – a word that opens a new chapter in the abuses of the Fake News Inquiry.

But at least we don’t have prior censorship.

News Brazil, English news Brazil, Telegram, Fake News