Facebook Instagram and Facebook pay election advertising advances outside the law

By Patrcia Campos Mello

14 February, 2022

While electoral advertisements are legally only allowed on or after August 15 of this year, at least 20 ads have been placed on Facebook and Instagram that promote the candidacy of president Jair Bolsonaro (PL), with the phrase “Bolsonaro 2022”, and a request to vote or give support.

These advertisements, registered in the Facebook ad library, had about 760 thousand views between December 1st, 2021 and February 3rd, 2022. During the same period, seven ads were registered on Facebook promoting the candidacy of former President Luiz Inacio Lula da Silva (PT) with the phrase “Lula 2022”. These ads had about 45 thousand impressions, as views on the platform are referred to.

According to a survey by the Federal University of Rio de Janeiro (UFRJ) and Folha, elected politicians are among the biggest advertisers seeking to promote candidacies on Facebook, many of whom receive funds from the party’s fund or have cabinet funds, as well as pages for political parties and groups.

“Brazil 35 — Santa Catarina supports Bolsonaro’s re-election in 2022,” says the ad displayed by the page that identifies itself as the State Executive of Partido da Mulher Brasileira (“Brazilian Women’s Party, PMB) and provides the address of the party’s website. The ad had a small reach (4,000 impressions,18% of which were from Facebook users in Sao Paulo, and only 5% in Santa Catarina). When asked, the PMB stated that it did not publish any political advertisements through its national directory. “This attitude was isolated and done without the knowledge of the party, and when we became aware of it, we summarily dismissed the Commission in Santa Catarina.”

State Deputy Talita Oliveira (PSL-BA) published ten ads with the words “BOLSONARO 2022! The voice of the people is the voice of God. Let’s show our strength. So we ask: who is with us? Will you support President Bolsonaro in 2022?”. According to information from Facebook, she spent between R$1,500 and R$2,000, and the ads had garnered between 500 and 600 thousand impressions (views).

Despite the fact that Talita is a state representative in Bahia, 23% of the people who viewed the ad were from Sao Paulo, and only 7% from Bahia, according to the platform.

In a statement, the deputy said that the resources used to boost the content were private, without any connection to the party fund or cabinet funds. She said the ads also sought to reach “Bahia residents who live in other locations, as well as for the purpose of increasing engagement on the social network, given its national positioning.”

Talita denies that this advertisement has failed to comply with time restrictions. “This is not early election advertising, since it does not include an explicit request to vote. I simply asked my followers a question and expressed my desire for the re-election of the president with the mission of rebuilding our country.”

Electoral law states that the mentioning of candidacies and the praising of the personal qualities of candidates do not constitute advance advertising, unless an explicit request is made to vote.

However, according to attorney Marilda Silveira, a professor of electoral law at IDP and founding member of Abradep (the Brazilian Academy of Electoral and Political Law), the case law established by the TSE considers that other means of soliciting votes using certain “magic words” can also be considered early campaigning.

These “magic words’’ can include asking for support and references to maintaining the government and the continuity of the project. This, says Marilda, “is more serious when there are resources involved, such as the boosting of content on the internet”. In addition, during the campaign season, the ad can only be paid for by the candidate, party, or the coalition itself, and not by a third party. “If a mass-scale campaign is carried out with significant resources, it can distort the competition.” Violations can give rise to a fine between R$5,000 to R$25,000 to the beneficiary, if it is proven they had prior knowledge.

Another politician who placed ads promoting Bolsonaro on Facebook was Rodrigo Amorim, State Representative (PSL-RJ), who was the vice of Flavio Bolsonaro in the 2016 Rio mayoral election. He became known for breaking a plaque in honor of councilwoman Marielle Franco a year after she was murdered, and then framed a piece of the plaque and hung it in his cabinet.

In the ads, the deputy says: “AVOID PABLO | If all the reasons to vote for Bolsonaro in 2022 were not enough, this one seems irrefutable: to avoid having to suffer through listening to the musical garbage of Mr. Pablo! #Bolsonaro2022.”

The representative said to Folha that he used cabinet funds for the campaign, which, according to him, can be considered as “disclosure of the mandate, which has a very clear ideological bias.” Amorim claims to have spent R$78 on this ad. However, he denies that this is early advertising.

The deputy states that, in the light of the electoral justice system, he did not ask for a vote, he only stated the option to vote for Jair Bolsonaro in 2022, something that, according to him, he has been declaring since January 1, 2019. “In the same way that I declared my vote for Jair Bolsonaro in 2018 starting with the launch of his candidacy, the previous year. Such a statement is simply a use of freedom of speech, and not a request to vote, as the law states.”

During the same period, the pro-Lula ad with the greatest reach was a photo with the words “Barbecue, beer, and Lula 2022, with 25 thousand to 30 thousand impressions, and costing from R$100 to R$199. The author was Marcio Martins, a political activist linked to the PT.

When asked for comment, Martins said he does not consider it to be electoral campaigning. “I pushed the ad to grow my page, not to elect neither barbecue, nor beer, nor Lula.”

In addition, there are election ads paid for by unidentified advertisers — one of them shows photos of Bolsonaro with the words route 1, route 2, and route 3 in 2022, and another shows a baby saying “Lula is a crook” and Bolsonaro 2022. The ads were not declared by advertisers as political advertising, so Facebook’s ad library suspended them and does not identify who paid. However, the ads had received views before they were removed.

To enter the ad library, which requires the identification of advertisers and informs campaign reach and audience, advertisers need to self-declare their campaigns as political or election campaigns. After that, Facebook uses artificial intelligence to try to detect ads that have not been declared as political but fit the category.

“The TSE needs to step in and make the rules clear to the candidates regarding what can happen if they use the platforms to do these political campaigns. If the TSE does not position itself clearly, the arbiter of this election will not be the TSE, it will be the platforms,” says Rose Marie Santini, a professor at the UFRJ School of communication and director of Netlab.

​When asked, the TSE stated that “the explicit nature [of the request to vote] is a fundamental fact, since, as a rule, veiled requests are not punished” and that the messages “do not necessarily constitute violations of the electoral law.” The court also reported that, in regards to internet advertising, its actions are generally in response to formal violations (e.g., prohibited sites).

“We do not take action when the problem involves the content. In these cases, any complaints received are forwarded to the Public Prosecutor’s Office, which evaluates the appropriateness of actions taken against a given representation.”