TSE President Schedules Judgment on Bolsonaro Deepfake Video for Next Tuesday

The president of Brazil's Superior Electoral Court (TSE), Kássio Nunes Marques, has scheduled a crucial judgment for next Tuesday concerning a deepfake video of former President Jair Bolsonaro. The case, brought forth by the Workers' Party (PT), questions the use of the AI-generated video presented at the Liberal Party's convention in July.

This upcoming session is significant as the ministers are expected to establish a definitive thesis outlining parameters for the use of artificial intelligence (AI) in electoral campaigns. This ruling will set a precedent for how AI can be utilized across the entire Electoral Justice system in Brazil.

Reports indicate that the TSE has been considering a ban on AI-generated avatars in campaigns. Some ministers advocate for a broad prohibition of any AI avatar that simulates candidates or other individuals, believing this approach would prevent excessive litigation. Others are considering a more nuanced approach, which could lead to case-by-case decisions on hundreds of AI-generated content pieces.

The use of deepfakes to unfairly benefit or harm candidacies is already prohibited, but the interpretation of these rules has divided the ministers. While current TSE resolutions do not outright ban AI in electoral propaganda, they mandate the labeling of such content. Minister André Mendonça recently proposed a thesis suggesting that an AI-generated content is only irregular if it possesses a degree of realism capable of deceiving voters, arguing that mere AI generation is insufficient to constitute an offense.

Lawyers for Jair Bolsonaro's campaign have argued that the deepfake video did not constitute an electoral offense because it was clearly labeled as AI-generated and lacked the potential to mislead viewers. They contend that the decisive legal element should be the content's actual capacity to deceive or falsify events, and that the initial warning neutralized any possibility of confusion regarding the video's authenticity.

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O elemento juridicamente decisivo deve ser a capacidade concreta de enganar, falsificar acontecimentos. No caso, o aviso inicial neutralizou a possibilidade de confusão sobre a materialidade do vídeo.