Direct Action of Unconstitutionality (ADI) no. 7261

restrictive measures for combating disinformation or a case of prior restraint?

Abstract

This research critically analyzes, from a constitutional perspective, the decision of the Brazilian Federal Supreme Court in Direct Action of Unconstitutionality No. 7261, which upheld the validity of Resolution No. 23.714/2022, issued by the Superior Electoral Court to combat disinformation during the 2022 elections. The objective is to examine the compatibility of this regulation with fundamental rights, particularly freedom of expression. The resolution, which provides for the removal of content, monetary sanctions, and suspension of social media accounts, was challenged for alleged usurpation of legislative competence and lack of legal basis. The methodology adopted is based on bibliographic and documentary research, with qualitative analysis of case law, legislation, and doctrine, as well as a comparative review of international experiences. The study finds that although the resolution aimed to protect the integrity of the electoral process, its judicial validation raises concerns regarding due process, the absence of objective criteria for defining disinformation, and the concentration of sanctioning powers in administrative bodies. The conclusion is that exceptional measures, even in the face of institutional crises, must not compromise fundamental guarantees. The research’s original contribution lies in articulating constitutionalism, digital regulation, and democratic protection, arguing that the fight against disinformation should occur through democratic legal instruments, with effective judicial oversight and institutional safeguards, to preserve digital democracy without infringing on fundamental rights.