Fake News in Brazil's 2018 Presidential Elections: A Systems Theory Approach to Judicial and Legal Responses
| Author | Marco Antonio Loschiavo Leme de Barros,Lucas Fucci Amato,Diana Tognini Saba,Paula Pedigoni Ponce |
| DOI | http://doi.org/10.1177/09646639221094152 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
Fake News in Brazil’s 2018
Presidential Elections: A
Systems Theory Approach
to Judicial and Legal
Responses
Marco Antonio Loschiavo Leme de Barros
Law School of Mackenzie Presbyterian University,
Brazil
Lucas Fucci Amato
Department of Legal Philosophy and Jurisprudence,
Law School of the University of São Paulo, Brazil
Diana Tognini Saba and
Paula Pedigoni Ponce
Law School of the University of São Paulo, Brazil
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 obser-
vations on case law from the Superior Electoral Court regarding fake news dissemin-
ation 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
Corresponding author:
Marco Antonio Loschiavo Leme de Barros, Assistant professor at the Law School of Mackenzie Presbyterian
University, São Paulo, Brazil.
Email: marcoloschiavo@gmail.com
Article
Social & Legal Studies
2023, Vol. 32(1) 116–138
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221094152
journals.sagepub.com/home/sls
based on the deference of the Judiciary to legislative decisions; its openness to technol-
ogy experts; and the adoption of “regulated self-regulation”as a way of building an inter-
face between legal and political national systems and transnational digital platforms.
Keywords
digital media, elections, fake news, regulation, social systems theory
Introduction
Brazil’s presidential election of 2018 was one of the most turbulent political disputes
since the beginning of the re-democratization process in the 1980s. In the midst of an
electoral scenario full of unprecedented elements, the most conspicuous social phenom-
enon, causing noticeable repercussions, was the mass dissemination of fake news. This
innovation, directed at misleading the voting public, tarnished the exercise of political
rights. According to results released by the IDEIABigData Institute, for example, more
than two-thirds of voters stated that they had received fake news via social media
during the 2018 presidential campaign (Folha de São Paulo, 2019). On the same topic,
research conducted by the Avaaz Research Institute showed that 98.21% of voters who
supported the then candidate Jair Bolsonaro (Social Liberal Party –PSL) had encountered
false news items during the dispute, 89.77% of whom believed that such news stories
were true (Pasquini, 2018). This was the first electoral process that took place after a
2015 Supreme Court ruling that prohibited businesses from financing political campaigns
(Direct Action of Unconstitutionality 4.650); as a result, the irregular financing (by entre-
preneurs and other supporters) of mass fake news campaigns by private messaging ser-
vices took centre stage, according to a series of reports by the Folha de São Paulo
newspaper (Campos Mello, 2018).
The German sociologist Niklas Luhmann developed a wide-ranging social theory that
stemmed from the concept of communication as the basal element of society and its social
systems (such as the law, politics, and the mass media). Although his theory (which
largely uses cybernetic references and concepts, such as coding and programming) is
hailed as a masterful self-description of digital society (Baecker, 2006), the fact is that,
as Luhmann died in 1998, his work pre-dated the disruptive transformations brought
about by digital technologies since the beginning of the 21
st
century. Therefore, the util-
ization of his theory to examine the phenomenon of fake news offers an opportunity to
enrich empirical analysis with reference to his theory and to refine his theory by reference
to new societal trends.
This article uses the theory of social systems developed by Niklas Luhmann as a theor-
etical instrument to define the systemic tensions provoked by the emergence of the wide-
spread dissemination of fake news via digitalmedia. These frictions occurwithin the media,
politics and law. Luhmann’s theoretical framework, which was conceived as a tool to
examine communication as a basic element of society, is now proving itselfto be adaptable
to describe ourcurrent digital society. Inthis article, it is oriented as anobservational tool to
scrutinize Brazilian juridical responses to the problem of fake news.
Loschiavo Leme de Barros et al. 117
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