O envio de mensagens em massa contendo desinformação no processo eleitoral e a análise da gravidade da conduta

Abstract

At the 2018 presidential elections, candidate Jair Bolsonaro was accused of financing the practice of sending bulk messages by instant messages application containing false information about his adversary, Fernando Haddad. Analyzing the supposed fact, Tribunal Superior Eleitoral decided to recognize not having any evidence of the gravity of the conduct in order to defining it as an abuse of economic power and improper use of social media, which depended of the measure of the extension and the effects caused by the illicit act, indicating the conduct’s potential of influence the election results. Nonetheless, considering the own nature of the illicit, it becomes impossible the proof of these elements. Having this in mind and aiming a solution to the proof issue that stands here, the gravity of the conduct and the impossibility of quantitative proofs of its extension and effects were studied, through an analysis of its constitutive elements, basing this study on bibliographical research of the judicial decisions and the specialized literature. It was concluded that, in order to frame the act as an abuse of economic power and undue use of social media, it is enough the proof of its occurrence, since your potentiality to influence the election results can be presumed.