In late July, as the Liberal Party's national convention confirmed Flávio Bolsonaro as its presidential candidate, a giant screen brought onto the stage a familiar but absent face: the image and voice of former president Jair Bolsonaro, recreated with artificial intelligence. On Tuesday (September 1), Brazil's top electoral court, the Superior Electoral Tribunal (TSE), formed a majority to reject a fine against the senator over that video, according to news site G1.

Four justices found no breach of campaign rules because the video played at a closed party event. The majority followed the vote of the court's president, Justice Kássio Nunes Marques, against the penalty.

The video and the complaint

The case reached the TSE through a challenge filed by the Brasil da Esperança Federation, a coalition of the Workers' Party (PT), the PCdoB and the Green Party, over the video shown at the Liberal Party convention held on July 25, according to Poder360. In the recording, the former president's image says he is "imprisoned and silenced by an arbitrary decision", declares that "no prison will silence the feeling of hope" and asks supporters to welcome Flávio Bolsonaro "with open arms" as the presidential candidate.

At the time, Flávio Bolsonaro's campaign told the court that the use of AI had been disclosed to the public and that the material was not a physical appearance, a live broadcast or an authentic recording, as reported by GZH, the news site of the Zero Hora newspaper. His lawyers argued that the video did not fit the electoral court's definition of a deepfake and compared the technology to masks, dolls and other forms of representation used in campaigns.

What weighed in the ruling

For the president of the TSE, the fact that a party convention is streamed online and reaches a wider audience does not turn the message into a request for votes aimed at the electorate. The justice cited Article 36-A of Brazil's elections law, Law 9,504/1997, which leaves room for promoting pre-candidacies and seeking political support.

"Party leaders naturally try to convince convention delegates about the political choices to be made. For that reason, an expression of political support addressed to the members of the party is not necessarily the same as campaign propaganda addressed to the electorate (...), as long as there is no explicit request for votes"

The ruling also sets guidance for artificial intelligence in this year's race. According to GZH, the court is using the case to define parameters on AI and deepfakes that will guide future decisions by electoral judges. Current electoral rules already ban synthetic audio or video that creates, replaces or alters the image or voice of living, deceased or fictional people to help or harm a candidacy. The synthetic face that opened the Liberal Party's convention, a former president generated by code, drew no fine from the majority of the court.