Brazilian Superior Electoral Court Approves New Resolution On Artificial Intelligence And Freedom Of Speech – New Technology

On February 27, 2024, the Brazilian Superior Electoral Court
(“TSE”) – responsible for judging electoral cases
and overseeing the organization of elections – approved 12
resolutions that will guide the 2024 municipal elections, including
Resolution No. 23,610, dated December 18, 2019
(“Resolution”)¹.

The Resolution marks a notable evolution in the regulation of
the Brazilian electoral landscape, addressing a wide range of
topics from ensuring responsible use of artificial intelligence
(“AI”) to safeguarding freedom of expression and
controlling misinformation AI.

Its main target is to ensure an ethical and transparent use of
AI, thereby protecting the fairness of the democratic process. TSE
defined “Artificial Intelligence” as a:

Moreover, it defined “synthetic content” as an
“image, video, audio, text or virtual object generated or
significantly modified by digital technology, including artificial
intelligence“.

Among the measures outlined in the Resolution concerning this
issue, we highlight the following:

1.Implementation of tools to identify and combat the spread of
misinformation and fake news;

2. Requirement of labels for the identification of synthetic
multimedia content generated with AI to create, replace, omit,
merge or change speed or superimpose images or sounds. The labels
shall be adequate to the medium where the ad was broadcasted (e.g.,
at the beginning of radio ads or through watermarks in campaign
posters);

3. Restrictions on the use of chatbots and avatars simulating
interaction with a candidate or other real person; and

4. Absolute prohibition of the use of deep fake (i.e., digitally
generated or manipulated content, even with authorization, to
create, replace, or alter the image or voice of a living, deceased,
or fictitious person cannot be used to harm or favor a
candidacy).

TSE has also provided that the identification labels are not
required in cases in which the AI is used to:

1. improve image or sound quality;




2. generate graphic elements of visual identity, vignettes and
   logos; and




3. generate materials that were already common in past elections
   (e.g., posters with images of allied candidates that were digitally
   manipulated to simulate that they took the photo together)

Among other prominent aspects of the norm, the protection of the
freedom of expression of artists and influencers stands out. This
measure is essential for preserving the plurality of ideas and a
healthy democratic environment for political debates. By
acknowledging the crucial role these agents have in shaping public
opinion, the Resolution seeks to ensure that their creativity is
not unduly limited during electoral periods. Therefore, artist and
influencers may share their political position during shows,
performances, and on the internet, as long as it is a deliberate
manifestation, free of any payment.

In addition to protecting freedom of expression, the Resolution
aims to ensure the protection of the personality rights of artists
and creators of audiovisual works. Considering the intrinsic value
of these works and their personal connection to the authors, the
norm establishes mechanisms to prevent the unauthorized use of
these works in electoral campaigns. According to the TSE,
injunctive relief, provided as an appropriate mean to cease
unauthorized use, represents an effective tool to protect the
rights of creators and ensure that their artistic contributions are
duly recognized and respected.

Regarding copyright, the Resolution prohibits the use of
audiovisual works, music, jingles, and sound effects in electoral
propaganda without the proper authorization from copyright holders,
as a measure to secure the recognition and adequate remuneration of
these creators during the electoral period.

Furthermore, it tackles an issue that has troubled musicians in
recent campaigns when candidates were free to use famous songs
simply changing parts of the lyrics because the alterations were
enough for them to claim in court that the new song was a parody
and, according to the Brazilian Copyrights Act (Federal Law No.
9,610/1998), parody is fair use. TSE’s Resolution expressly
states that authors may request the cessation of ads containing
parodies of their work.

In effect, the Resolution aligns with other existing legal
norms, both in the electoral context and in the realms of copyright
and freedom of expression.

In the electoral context, the norm complements legislation aimed
at ensuring the fairness of the electoral process and equality of
opportunities among candidates.

From the perspective of information dissemination, the
Resolution imposes obligations on application providers, including
measures to combat the spread of misinformation and ensure swift
and effective action in taking down irregular content and accounts
during the electoral period. These measures aim to protect the
integrity of the democratic process, preventing the spread of
misinformation, hate speech, fake news, and other forms of
manipulation that could negatively influence voters.

Noteworthy requirements include:

1. Implementation and disclosure of measures to prevent or reduce
   the spread of notoriously false or severely decontextualized
   information that may affect the integrity of the electoral
   process;




2. Promotion, through cost-free boosting, of informative content
   that clarifies notoriously false or severely decontextualized
   information;




3. Maintenance of an advertisement database for real-time
   monitoring of content, values, sponsors, and demographic
   characteristics of the population groups that make up the audience
   (profiling) of contracted ad; and




4. Immediate take down of content and accounts during the
   electoral period in cases of risk, such as:
   

   1. Behavior, information, and antidemocratic acts provided by the
      Criminal Code; and

   
   

   2. Hate speech or hateful behavior, including racism, homophobia,
      Nazi and fascist ideologies, or hateful actions against an
      individual or group based on prejudice of origin, race, sex, color,
      age, and any other forms of discrimination.

   
   

   3. Content manufactured or manipulated, partially or entirely, by
      digital technologies, including AI, in disagreement with the
      labeling set out in the Resolution.

However, it is important to note that this regulation is not
without debates and challenges, fitting into a discussion that is
not new in the Brazilian legal context.

Indeed, the Brazilian Civil Rights Framework for the Internet
(also known as “Marco Civil da Internet” in Portuguese
– Federal Law No. 12,965/2014), establishes fundamental
principles such as network neutrality and freedom of expression.
Its Article 19² outlines the responsibility of
application providers for third-party content only in cases of
non-compliance with specific court orders requiring the removal of
certain content deemed illegal (e.g. hate speech and copyright
infringement).

However, this responsibility is conditioned upon the
non-compliance with a specific court order, thus ensuring the
preservation of freedom of expression while also protecting against
abuse and legal violations.

This issue gained even more prominence with Extraordinary Appeal
No. 1,037,396³, currently under analysis by the
Brazilian Supreme Court (“STF”), addressing the
constitutionality of the above-mentioned Article 19 and the
possibility of civil liability of internet providers, websites, and
managers of social media applications for damages resulting from
third-party illicit acts.

Nonetheless, TSE’s Resolution demonstrates a proactive
approach by the state in regulating the digital environment during
the electoral period, where providers may be held responsible if
they do not act proactively to prevent damages, emphasizing the
importance of their actions to ensure the integrity of the
democratic process.

In this context, TSE’s Resolution represents a significant
progress in specific regulatory approaches for the electoral
context. Meanwhile, debates on the responsibility of digital
platforms continue to be shaped by the complex interaction between
constitutional principles, specific laws, and emerging concerns
related to misinformation and cybersecurity.

In summary, TSE Resolution No. 23,610 represents a comprehensive
effort to modernize and strengthen the Brazilian electoral system
while protecting citizens’ fundamental rights and promoting
transparency and integrity in the democratic process. By addressing
issues such as freedom of expression, misinformation, and use of AI
and other new Technologies, the resolution demonstrates a clear
commitment to promoting democracy and strengthening electoral
institutions.

The 2024 municipal elections are scheduled to happen on October
and will be the first Brazilian election since AI has become an
accessible tool. Thus, it will serve as a test for the Resolution
and to TSE, which will face new challenges and will have to live up
to them.

Footnotes

1. Available in Portuguese at: https://www.tse.jus.br/legislacao/compilada/res/2019/resolucao-no-23-610-de-18-de-dezembro-de-2019

2. “Article 19. With the aim of ensuring freedom
of expression and preventing censorship, the internet application
provider may only be held civilly liable for damages arising from
content generated by third parties if, after a specific judicial
order, it fails to take the necessary measures, within the scope
and technical limits of its service and within the stipulated
period, to make the content pointed out as infringing unavailable,
except as otherwise provided by law.

Paragraph 1. The judicial order referred to in the
main clause must, under penalty of nullity, clearly and
specifically identify the content pointed out as infringing,
allowing unequivocal location of the material.

Paragraph 2. The application of the provisions of
this article to infringements of copyright or related rights
depends on specific legal provisions, which must respect freedom of
expression and other guarantees provided for in Article 5 of the
Federal Constitution.

Paragraph 3. Cases involving compensation for damages
arising from content available on the internet related to honor,
reputation, or personality rights, as well as the unavailability of
such content by internet application providers, may be brought
before special courts.

Paragraph 4. The judge, including in the procedure
provided for in paragraph 3, may, based on clear evidence of the
fact and considering the community’s interest in making the
content available on the internet, anticipate, in whole or in part,
the effects of the protection sought in the initial request,
provided that the requirements of the plaintiff’s claim being
likely and the reasonable fear of irreparable or
difficult-to-repair damage are present.” The full text in
Portuguese is available at: https://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/lei/l12965.htm

3. Available in Portuguese at: https://portal.stf.jus.br/processos/detalhe.asp?incidente=5160549

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