Public agents in social networks: immunity from power?

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The president's twitter messages should be subject to Public Administration rules, as they are socially recognized as "state statements" and not as mere outbursts or daydreams

By Rafael Valim*

Public Law has historically asserted itself as a project to contain power. In place of unchallengeable authorities, amid advances and setbacks, a conditioned and limited exercise of power was imposed. However, anyone who thinks that this historical process has reached its end is mistaken. In the luminous expression of Prof. García De Enterría, “the fight against the immunities of power” is an unfinished phenomenon and periodically revived by new social challenges.

The rise of extreme right-wing populism in Brazil and in various parts of the world, by intending to install, in Nadia Urbinatti's oxymoron, a "direct representation" through permanent communication and without intermediaries between the "leader" and the "true people" , especially in the context of social networks, highlights an administrative activity that, although of unusual importance, remains completely outside the rules and principles of Brazilian Administrative Law, namely: the information activity of the Public Administration.

In this context, several public agents and even the Chief of the Federal Executive Power make use of tools such as the Twitter to announce nominations, dispel rumors, record the progress of works and public policies, but also to falsify scientific or historical data, insult political opponents, attack minorities, promote hatred, among other “purposes”. Is all this information irrelevant to the Law? Does a message from the President of the Republic on social networks have the same legal meaning as a message produced by the acclaimed figure of the “uncle of the barbecue”?

Regrettably, for many the answer is yes. The President can feel like the “barbecue uncle” and, irresponsibly, say what suits him, without submitting to the principles of Public Administration when he is “having fun” in the Twitter. This is how, for example, the Federal Public Ministry understood in Writ of Mandamus nº 36.666/DF, in the following terms: “Although the personal account of the President of the Republic conveys information of social interest, publications made on the social network do not generate rights or obligations for Public Administration, nor can they be classified as administrative acts”.

The curious thing is that the “private” statements of the President of the Republic shake the national economy, affect international relations and generate deep social commotion due to their frequent performative character. What would motivate such significant consequences? Would it be just the expressive number of followers or would it be the fact that each and every person interprets that message as a statement by the Chief Executive?

Now, the answer is embarrassingly obvious: the aforementioned declarations are socially recognized as “state declarations” and not as mere outbursts or daydreams by the highest representative of the country. The principle of good faith – which must govern the relationship between Public Administration and citizens – disallows a different understanding.

In other words: all the information that public agents provide to the public – in the physical or virtual environment – ​​constitute “declaratory administrative acts” and, to that extent, are subject to the principles that govern the information activity of the Public Administration, among which stand out the veracity and impersonality.

Incidentally, US justice has explicitly proclaimed the public nature of the Twitter run by President Donald Trump: “He uses the account to announce “official government business matters,” including major changes to the White House and senior staff, as well as changes to key national public policies (…). He uses the Account to approach foreign leaders and announce foreign policy decisions and initiatives. Finally, he uses “like”, “retweet”, “reply” and other Account functionality to understand and gauge the audience's reaction to what he says and does. In short, since taking office, the President has consistently used the account as an important governance and executive outreach tool. For these reasons, we conclude that the factors pointing to the public, not private, nature of the account and its interactive features are overwhelming” [1].

Democracies that disregard the importance of information pave the way for their own destruction. It is therefore urgent to break the doctrinal and jurisprudential blindness surrounding the informative activity of the Administration, in order to give rise to control and accountability of the public agents that perform it.

*Rafael Valim is a visiting scholar at Institute of European and Comparative Law from the University of Oxford. Author, among other books by Lawfare: an introduction (with Cristiano Zanin and Valeska Zanin Martins) – Contracurrent, 2019.

Notes

[1] https://cases.justia.com/federal/district-courts/new york/nysdce/1:2017cv05205/477261/72/0.pdf.

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