Brazil's TSE to Rule on Deepfake Use by Next Week; Majority Expected to Oppose Bolsonaro Avatar

Brazil's Superior Electoral Court (TSE) is poised to deliver a significant ruling on the use of deepfakes and other artificial intelligence-generated content in election campaigns. The court anticipates concluding its judgment on the controversial avatar of former President Jair Bolsonaro, which appeared at a convention hosted by the Liberal Party (PL), by the end of the upcoming week. Early indications suggest a majority of the court's justices will rule against the use of such tools, particularly when employed by Senator Flávio Bolsonaro, who is running for president.

The TSE aims not only to decide on the specific case but also to establish a guiding thesis on the acceptable use of AI in political campaigns. This includes defining clear parameters to distinguish between prohibited deepfakes, which create a false perception of authenticity and can mislead voters, and other forms of synthetic media like illustrations, memes, caricatures, and animations. The key factor in this distinction will be the degree of realism and verisimilitude of the content.

This initiative follows discussions that have reportedly caused some friction for TSE President Kassio Nunes Marques, who facilitated a closed-door meeting among justices to address the matter. The court intends to reiterate its prohibition of deepfakes, regardless of whether they are used to benefit or attack a candidate. Furthermore, the ruling will likely set criteria for identifying synthetic content, requiring clear labeling for AI-generated material that does not meet the threshold for a deepfake.

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If it is capable of producing a false perception of authenticity and confusing the voter, it is a deepfake, therefore, a prohibited tool.

The proposed thesis, initially put forth by Justice André Mendonça in a decision ordering the removal of videos featuring a deepfake of Flávio Bolsonaro alongside former banker Daniel Vorcaro, is expected to be considered. The TSE plans to consolidate related cases, including the representation filed by Lula's coalition against the Bolsonaro avatar and Mendonça's thesis on deepfakes, for a joint plenary judgment. This consolidated approach aims to ensure consistency and clarity in the application of electoral law regarding AI-generated content.

While a majority appears to be forming against the use of deepfakes, the court is still deliberating on the specific consequences for Flávio Bolsonaro's candidacy should the prohibition be confirmed. Questions remain about whether the convention's use of his father's avatar constitutes an internal party matter or a campaign act subject to penalties. The TSE's forthcoming decision is expected to have far-reaching implications for how AI technologies are utilized in future Brazilian elections.

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If the fantastical or allegorical character is evident, it will be considered synthetic content, subject to requirements such as an AI label.