Fachin orders the archiving of the fake news investigation

The president of the Federal Supreme Court (STF), Edson Fachin, ordered this Monday (9) the shelving of the fake news investigation, opened more than seven years ago and which investigated attacks and threats against members of the Court.

Despite the closure of the so-called "mother investigation", developments of this investigation that are open will continue to be analyzed individually by the STF.

"What is now closed is the main investigative procedure, leaving, as of this decision, the distribution to prevent the investigation of new supervening facts related to its original object. Its history is not erased, the institutional reasons that determined its establishment are not undermined, nor is the relevance it had for the protection of this Court and the constitutional order at a unique moment in republican life ignored", says Fachin in the decision.

In the decision, Fachin determines that sensitive data from the material gathered over more than 12 thousand pages and 50 volumes be separated, and says that after that, he will lift the confidentiality of the investigation.

"Accepting the PGR's statement, the secrecy of the files will be maintained provisionally until the completion of the procedure for extricating and separating documents that contain sensitive data protected by the right to privacy, such as banking, tax, telephone and personal data secrecy. Once the screening has been completed and a specific attachment has been created, the secrecy of the investigation will be lifted", says a note from the STF.

The minister also states that the decision does not cover convictions, acquittals, agreements, decisions to receive a complaint or other jurisdictional pronouncements "made in autonomous processes, the validity and effectiveness of which are not the subject of this pronouncement".

"It is simply recognized that investigations, precisely because they are instrumental, must find an end. The protection of democratic institutions, no less than the prosecution of those who attack them, must be carried out within the Constitution. It is this same Constitution that protects the independence of the Judiciary and guarantees to everyone a reasonable duration of the process, freedom and due legal process", states Fachin.

Fachin responded to a request from the Attorney General's Office (PGR), which understood that the specific object had been exhausted.

The fake news inquiry was opened in March 2019 on the initiative of the then President of the Supreme Court, Dias Toffoli, who appointed Alexandre de Moraes as rapporteur.

The initial focus was to investigate attacks and threats against ministers and the STF, but over the years the investigation expanded its scope and even reached a member of the Court: Minister André Mendonça.

The investigation brings together police operations, social media blocking, arrests and charges brought by the Attorney General's Office. Furthermore, it became the target of criticism from entities, such as the Brazilian Bar Association, and a reason for friction mainly with the opposition in Congress, in addition to causing discomfort in the legal community.

The end of the fake news investigation began to be discussed internally during the presidency of retired minister Luis Roberto Barroso. In private conversations, Barroso had been debating with Minister Alexandre de Moraes the conclusion of the investigation. Moraes showed resistance.

With Barroso's departure, Fachin took over internal negotiations to end the investigation, at the end of last year. The president of the Supreme Court argued that it was necessary to find a reasonable deadline.

Fachin was the rapporteur of the action that, in June 2020, led the Supreme Court to declare the legality and constitutionality of the investigation, opened to investigate the existence of fraudulent news (fake news), slanderous denunciations and threats against the Court, its ministers and their families.

The institutional crisis created in the STF by the developments in the Master case, however, ended up putting pressure on Moraes and leading Fachin to take over, in September, leading the investigation's outcome. Fachin ordered a fine-toothed comb throughout the investigation.

The survey identified:

104 procedures linked to the investigation;

Measures that have not been carried out for 22 months, such as taking statements;

12 thousand pages, more than 50 volumes, which bring together personal, banking, tax and business data from individuals, institutions and legal entities.

President of the Federal Supreme Court (STF), Minister Edson Fachin. — Photo: Antonio Augusto/STF

PGR defends, but requests archiving

In the request for archiving made to the Supreme Court, the PGR defended the investigation.

"Threats directed at ministers and their families, disinformation campaigns financed and disseminated en masse and incitements to close the Court were directed against the freedom to decide and the authority of decisions; they ultimately projected their repercussions on the preservation of the constitutional order", stated the PGR.

The attorney general, Paulo Gonet, also pointed out that the extension of the investigation was a necessity given the risks.

"The temporal extension of this investigation found correspondence in the succession of threats that, over seven years, were identified to the conditions of free and independent exercise of the judicial function by members of the Federal Supreme Court", he declared.

In the Attorney's Office's assessment, the complete lifting of the confidentiality of the investigation has the potential to cause negative exposure, as the Constitution allows the restriction of publicity to defend privacy or social interests.

"The public interest in knowing facts relevant to community life is, here, served by the publicity of criminal actions and respective decisions. There is no assumption, however, that such an interest prevails over the protection due to data and the privacy of those who went through the investigation without the crystallization of suspicious evidence. Here, a case-by-case assessment of the data to be opened is mandatory," he said.