ELECTIONS

By Luísa Franco Machado

November 22, 2020

The previous Brazilian presidential elections in 2018, have been discussed and studied worldwide. The events influencing the electoral game at that time have become an example of the dangers for democracy in regards to the misuse of technology in elections.  During the campaign that led populist candidate Jair Bolsonaro to become the president of Brazil, the massive usage of microtargeting on social media was considered key to get him the votes he needed in order to win over the other candidates. Especially, over the left-wing candidate Fernando Haddad. The use of messaging apps, which allowed for the spread of fake news and disinformation, led to debates over the legality of Bolsonaro’s actions, even threatening his candidacy. 

After debates on whether or not this year’s Municipal Elections should take place due to the Covid-19 crisis, the Government decided that they will take place in November -one month later than originally planned-. With mobility and health restrictions imposed by the pandemic, online campaigns are now more than ever in the spotlight. Boosting content on Facebook and even Instagram or using WhatsApp to reach more voters, which have been almost exclusively connected to certain candidacies, are now key means to adapt electoral campaigns to the new normal.

However, the rules of the game have slightly changed. The Brazilian General Data Protection Law (LGPD) was approved in August 2018, but not in time for enforcement during that same year’s Presidential Elections. It anticipated a two-year entry into force period, until August 2020, in order to allow the country to adapt their systems to this new framework. However, in April this year, president Bolsonaro issued a provisional measure suggesting that the law’s entry into force should be postponed until May 2021 due to the impossibility for the society to adapt to the new regulations given the Covid-19 pandemic. After a back-and-forth game that also involved the Chamber of Deputies and the Senate, the latter decided that the law would have effects after the president sanctions it, which has happened in September this year. 

The changes in Law to regulate online electoral campaigns have been happening since before the previous elections, but for this year new bills and jurisprudence have been introduced to the legal order, especially when it comes to fighting fake news and protecting personal data.  Beyond the LGPD,  the Electoral Law and specific resolutions from the Superior Electoral Court regulate under which institutional principles these online campaigns should be built. Currently, the candidates have already started their campaigns, and the changes in regulation can already be perceived through their online activity. 

According to the Brazilian Law, the following are some of the regulations in force during the Municipal Election that are currently determining how the candidates should behave in their online campaign:

Boosting content

An important change in online electoral campaigns between the previous election and this year’s is the regulation of paid electoral advertising on the internet. The boosting of content must be clearly identified as such, under the risk of a penalty. For instance, if the user finds electoral propaganda on Facebook, they have to know that this has been paid by the candidate or their party to be there. Moreover, the boosted content can only be promoted by the candidate or the party’s official (and not personal) pages. Third party promotions, including those done by marketing agencies or consulting firms (such as in the British Cambridge Analytica scandal), are now considered illegal. In order to better monitor and punish those who do not abide by these regulations, candidates can only promote their content through platforms whose companies have legal representation in Brazil. This serves as a guarantee that illegal acts will be punishable by the Brazilian Law. 

Regulation of messaging apps

The Facebook-owned messaging app WhatsApp played a decisive role during the previous presidential election, considered to be the key tool that allowed Jair Bolsonaro’s victory. For the 2020 Municipal Elections, personal data protection activists and scholars have been expecting restrictions to be implemented on this and similar messaging apps, such as Telegram, Confide or even SMS, in order to avoid the misuse of these proven powerful tools. 

Even if a complete ban of electoral advertising through these apps did not happen, important restrictions have been imposed on this matter. Now, individual users have to register their phone number with the candidate or the party directly in order to have their contact included in the mailing list, besides having the possibility to opt-out at any time. Moreover, only the candidate or the party themselves are allowed to send the messages, strictly forbidding automated mass messaging by bots. As a result, companies, NGOs, and other institutions are not authorized to provide or sell personal and contact details of customers or supporters. 

Although these restrictions are considered to be a step forward when it comes to data protection, it does not prevent Fake News from circulating at large levels. Most of the restrictions imposed, such as the need for an unsubscription possibility or the rules on electoral advertising, do not apply for individual sympathizers advertising their candidates privately. However, even if this exception is understandable, it generates a loophole in the possible sanctions in case the candidates’ personal connections create WhatsApp groups to spread false information. 

Impact on small candidates

Although these new regulations come to set a safer and fairer electoral game, this bet does not come without limitations. Small candidates, who do not have a big party or coalition behind their candidacy, might suffer from an increased bureaucracy when preparing for their campaign. Online advertising seemed to be a more accessible type of campaign, especially for those who do not have a big team of marketing specialists behind their candidacy. The new LGPD handles small candidates just like they do with multinational companies such as Google or Amazon. For example, in both cases, a signed consent should be collected from the user of the institution or person allowing for their personal data to be processed. However, it is clear that big companies have more resources and capacity to apply this rule than a small candidate aiming to diffuse their ideas through WhatsApp to like-minded individuals. The question now is how the fiscalization of these regulations will work, and whether or not they will take into consideration the capacity of each stakeholder to implement them.

The changes in the legal system when it comes to manipulation of data and behavioral restrictions during the electoral campaign will be perceived by both candidates and voters. However, the implementation of restrictions often do not keep candidates from circumventing them in creative ways, as it has happened in the past. Moreover, as Brazil deals with the consequences of the pandemic, it is unclear whether the fiscalization will be effective or not. For now, we can only observe the electoral campaigns unfold and witness the outcomes of these new regulations, which can already be perceived.