Fake News in Brazil's 2018 Presidential Elections: A Systems Theory Approach to Judicial and Legal Responses

Abstract

This article adopts an approach from social systems theory to map the legislative and judicial responses produced by Brazilian law in light of the 2018 presidential election in Brazil, a political event marked by the mass dissemination of fake news. The study applies social systems theory to observe and interpret the legislative process in relation to a Draft Statute on Fake News which is part of a regulatory movement concerning digital communications and personal data in Brazil. The article combines this with observations on case law from the Superior Electoral Court regarding fake news dissemination during the 2018 presidential election. The results of these analyses demonstrate the difficulty of regulating fake news in Brazil and the problems with a legal framework based on the deference of the Judiciary to legislative decisions; its openness to technology experts; and the adoption of “regulated self-regulation” as a way of building an interface between legal and political national systems and transnational digital platforms.