Fake news ou propaganda negativa nas eleições municipais? estudo dos processos judiciais de “divulgação de notícia sabidamente falsa” na Justiça Eleitoral da Bahia (2020 e 2024)

Abstract

This research analyzed the electoral context of municipal elections in light of the threat posed by fake news. The study developed a conceptual examination of the topic and its legal regulation, investigating how this phenomenon emerged in judicial proceedings related to the 2020 and 2024 municipal elections in Bahia, classified as “Dissemination of Knowingly False News.” The methodology combined quantitative and qualitative documentary analysis of preliminary injunctions and final judgments. The aim was to identify the actual subject matter of these cases, assessing to what extent they effectively addressed instances of fake news. The findings revealed a discrepancy between judicial practice and the definitions established in academic literature. Court decisions overlooked essential characteristics necessary for the classification of fake news, conflating this concept with negative campaigning. Such conflation may generate problematic effects for democratic debate. Negative campaigning, although capable of influencing specific candidacies, constitutes a traditional element of electoral competition and forms part of legitimate political discourse. Its regulation must be subject to limits that safeguard the fundamental right to political critique. Fake news, by contrast, poses a more severe threat, as it is characterized by the deliberate fabrication of fraudulent information with a journalistic format, mass dissemination, and high viral potential. The application of identical legal measures to distinct phenomena leads to inadequate regulation in both cases. The study highlights the necessity of a clear conceptual distinction in legislation between these phenomena to ensure appropriate legal treatment for each.