pandemic elections

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By FELIPE GALLO FROM FRANCE*

What can we expect from electioneering during a pandemic?

The COVID-19 pandemic had impacts on various sectors of society, also affecting the 2020 elections. In addition to changing dates, the Electoral Court adopted a series of health protocols to ensure a safe election.

However, an election is not a protocol choice in which the citizen simply fulfills a legal obligation. It is a key moment in our democracy, as it is the opportunity to choose the direction of politics, in the case of 2020, municipal. For the voter to be able to make a conscious choice of the political leaders who will represent him, he needs to be informed and it is at this moment that we can reflect on the importance of electoral propaganda for democracy.

Far beyond being a right of candidacies, electoral propaganda is a right of citizens, because, in addition to having access to the political proposals of the candidates, the voter has contact with the political criticism of the main competitors in the election.

Despite their importance, the recent movements of “electoral mini-reform”, with the objective of reducing the costs of campaigns, began to increasingly reduce the possibilities of advertising. In this sense, in recent years we have had: (i) the reduction of electoral advertising time from 90 to 45 days; (ii) the ban on broadcasting advertising in outdoors, easels, fixed flags, walls and facades; (iii) the non-disclosure of advertising on the network of candidacies for city council in the free electoral schedule; (iv) the prohibition of broadcasting in sound car or minitrios in events that are not motorcades or similar; between others.

In view of the restrictions on carrying out “traditional campaigns”, advertisements gradually began to migrate more and more to the virtual environment. Campaigns began to see social networks as a favorable environment, due to their low cost and reach of the electorate, even if we think about the limitations caused by algorithms and the creation of “bubbles”. It should be noted that this phenomenon tends to intensify with the advent of the pandemic, in which several campaigns must migrate to the virtual environment.

In view of this “new” scenario, electoral legislation, little by little, began to regulate internet advertising. Were allowed (i) fundraising in sites; (ii) incentive to crowdfunding through platforms of crowdfunding; (iii) paid content boosting; and (iv) the placement of advertising in websites candidates' social networks and blogs.

But recent experiences with internet advertising have demonstrated problems not previously raised by electoral law. On the one hand, we have disinformation, commonly known as fake news Through massive data collection and the strategic use of algorithms, some candidates were accused of promoting an orderly mass disinformation campaign, passing on false messages and news about other candidates.

On the other hand, the legal mechanism normally used by candidacies to face the dissemination of disinformation is the removal of content, a strategy that is highly criticized by specialists due to the potential for disinformation to be confused with the right to criticism or opinion.

Thus, in “pandemic elections” we find two challenges for carrying out electoral propaganda.

In “street campaigns”, in addition to the numerous prohibitions mentioned above, candidates must be concerned with the health conditions of their supporters. It should be noted that Constitutional Amendment 107/20, responsible for postponing the election, did not establish any prohibition for carrying out electoral propaganda during the pandemic period. On the contrary, the norm allowed for more flexibility in carrying out institutional advertising by municipal public bodies with the aim of promoting acts and campaigns aimed at confronting the pandemic, which, in other times, could be considered a prohibited conduct, under the terms of art. 73 of Law, 9.504/97.

In addition, the EC prevented the municipal rule from limiting the carrying out of electoral propaganda, unless there is a decision based on a prior technical opinion issued by a state or national health authority. The intention of this device was to limit the abuse of political power, since candidates for re-election could try to prevent the electoral campaign of their opponents through municipal regulations.

In “virtual campaigns”, the challenge is to try to minimize the effects of disinformation, without the voter having restricted his right to express himself freely. To this end, Resolution 23.610/2019 itself, which regulates electoral advertising on the internet, makes clear respect for freedom of expression.

In this way, in addition to the natural adversities of an election during the pandemic, the Electoral Justice will face a huge challenge in supervising electoral propaganda, whether in street or virtual campaigns.

*Felipe Gallo from France Master in Political Law from UFMG and member of the Municipal Law Commission of OAB-MG.

Originally published on 2020 Election Observatory of the Institute of Democracy and Democratization of Communication (INCT/IDDC).

 

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