EARLY ELECTION ADVERTISING

The canvass exists as a set of techniques and physical and virtual tools, aimed at the dissemination and propagation of ideas to inform and persuade the electorate to make a decision as to vote in elections.
It is by means of advertising which ideas, information and beliefs are widespread, with the aim of the accession of recipients. It happens that some candidates attempt to subvert the process isonomic, anticipating their advertisements.
The year 2012 will be marked by elections for councilors and again, even before July 6, we can already see the change of the urban landscape, with "banners", "outdoors", painted walls, the floor flyers, stickers, banners,adhesives, sound cars, etc..
The issue is so important that in Paraiba - PB, the Regional Electoral Magistrate found that 80% of complaints relate to the TRE advertising early, and in Joao Pessoa, the percentage is amazingly 100%.
And the form, content and context as the pipes are carried above can configure the canvass early and should be rejected by the Judiciary.
The Superior Electoral Court lists as requirements for the characterization of early electioneering, the candidate's name and desired position, resume, work history and skills of the applicant; and plans of government, Platform, performance of work if elected and the context where is inserted advertising.
Therefore, to tolerate reduced manifestations as "John 2012" or "Mary wanted a happy 2012," because it did not minimally configure the anticipation of electoral  advertising , although morally questionable.
It is not forbidden or unusual as well, the messages of hope "Happy 2012", "Happy Easter", "Happy Mother's Day", "Happy Father's Day," Merry Christmas or New Year, "as punctual with respect to related events and temporary.
Alias, the recurring issue is so still, I quote an excerpt from the judgment of the TSE: "1. Do not set the early electioneering serving congratulatory message, conveyed through an outdoor, where it contains ad, even subliminally, of a given application or for purposes of voter support through the vote. .. Precedents. Aggravation Regimental not provided. "(235 347 AM, Rapporteur: Min Andrighi NANCY FATIMA, Date of Judgment: 13/10/2011, Date Published: DJE - Journal of Electronic Court, Volume 213, Date 10/11/2011, Page 50-51)
But are subtle nuances between the limits of  advertising  tolerated and irregular, so that the phrases or slogans mentioned above the applicant should add the name to the post as "Alderman X", would characterize the early advertising by name and position description in combined form.
Or, there were "24 hours working for you," as it is possible to see some similar posts in the center of the city of Campinas - SP, also because we would dishonor the merits and qualities attributed to the candidate.
The legitimacy of the application is also irrelevant to the characterization of the offense, as the applicant, even unable to compete in the upcoming elections, may be condemned.
Advertising extemporaneous can be characterized by a simple phrase, which break out in a fine by the Electoral Court.
As for the painted walls, it is necessary to observe the license and authorization of payment of municipal taxes prior.
Examples of early electioneering are: a) physical or electronic messages and cards with reference to elections, political platform, name and title, acronym of the party, number of candidate b) Stickers with name and title; c) Outdoor (to any election) and age, with the caption number, d) printed matter, newspapers, tabloids and personal information describing the applicant;
They do not constitute electioneering, since without the excesses and abuses: e) Creation of web pages, social networks provided with the voluntary and without using spam f) Adhesives, plates, tabloids, newsletters, without the number , position of the candidate or platform; g) personal or partisan events closed h) Public events without mention of the application and / or elections, with reports of just made for the public administration; i) Participation in interviews on radio or television debatesand meetings where the focus are the facts and not political and said the caveats above.
The rules exist in order to obtain the equality and ensure a better balance between the candidates, weakening the power of choice only by the availability of funds between them with marketing, as viewers become less likely or inclined to accept that idea just by inserting massive  advertising .
It is intended to inhibit actions that are put on the purpose of fixing the image and the directives of the political acts, capable of causing an imbalance in the electoral context in gradient to the other competitors.
But of course it is necessary to discern between what is anticipated electoral  advertising  and promotion. Not far, public appearances can be considered alone, while in office, passives of punishment. Moreover, it is natural that the political activity or exercise any activity or profession, the promotion staff of pre-candidate. Politicians need to be highlighted as a way to ensure future elections. The intention is always to expand their constituency, garnering the highest number of votes for the election and militants.
Proselytizing is something inherent in political activity, open to criticism only when disguised as improper electioneering, with an interest in voting in perspective. The massive information network of the modern world (TV, Radio, Newspapers, Internet, Blog's, Social Networks), greatly facilitating the dissemination of activities and the interaction of politicians to their electorate, as well as increased surveillance by advertising, essential elements the development of democracy.
The exhibition pure and simple of the applicant, in order to make it known to the public disclosure transient, with absence of the aforementioned elements associated with the anticipation of electoral  advertising , do not set any wrongdoing.
The advertisement must have the intention of revealing induvidosa the electorate office sought, the action that aims to develop and merits that enable the exercise of the function, as stated in the judgment: (Ac. TSE 15372, Min Eduardo Alckmin).
Also irrelevant is the fact of candidates nominated for the  advertising that exists out of time. (RP No. 267/ES of 21/09/2000, rel. Min Vieira Garcia, DJ, 8.11.2000).
The Electoral Prosecutor of Bahia announced a further fine imposed by the broadcaster Mario Kertesz Regional Electoral Court (TRE). He was accused of promoting early electioneering. The value of the fine was £ 5000 (at least by the Electoral Law).
The canvass is divided into direct and indirect or explicit or implicit (covert), pursuant to art. 26, item II, of Law no. 9.504/97, as prescribed as election spending. Thus, although there is no mention of expression, and the simulation context can lead to penalty. Alias, the court decisions in flawless stick to the factual context as the development of electoral marketing has grown significantly, bringing new elements, whose laws can not regulate at the same speed.
Still on the way advertising is divided into (i) intra-party advertising to the dissemination of ideas of the nominees to run for elective office canvassing of votes of their colleagues in the caucus, (ii) party, which aims to disseminate ideas of the political party and its program to attract new members, (iii) electoral  advertising  designed to influence voters in order to get their applications for membership, (iv) institutional advertising, with the primary purpose to disclose the achievements of the Administration and guide citizens on matters of interest.
The intra-party advertising may occur in the fortnight prior to the holding of the caucuses, that must happen between the 10th and June 30th of the election year. Your goal is to capture the votes of the conventional, in order that the applicant is chosen candidate.
Briefly, the canvass may be disclosed to the day of the July 6 election year until the eve of the vote, the intra since the fortnight preceding the convention and the party is prohibited from the second half of the election year.
Party disclosures, advertisements should target the achievements of the club and not to its members, much less on an individual and unique. In the ad intra, what matters is their limited scope, which should be reduced to their own party.

The institutional advertising does not translate as electoral  advertising  as art. 73, section VI, paragraph "b" of the Law no. 9.504/97:
"VI - in the three months preceding the election:b) with the exception of advertising products and services that have market competition, authorize acts of institutional advertising, programs, works, services and campaigns of federal, state or local, or their respective indirect administration entities, except in case of serious and urgent public need, so recognized by the Electoral Court; "
The art. 36, first sentence, of Law no. 9.504/97, which establishes standards for elections, makes it clear that electioneering "is allowed only after the July 5 election year." That is, the canvass should only occur from the July 06 election year, or this year.
The advertisement will be considered unlawful when it is anticipated and / or fail to meet the standards and legal dictates in its nucleus. At this point it criticizes the lack of clarity in the legislation regarding the initial term time to fix the canvass, as anticipated. The ideal would be reasonable to fix early elections, as at an earlier date is unlikely to be remembered by voters, not deserving reproach or punishment, at least in this sense.
Injunctions aimed at combating the impunity of the offenders before the election law. The action is a representation election procedures used for the determination of facts that may violate articles of the electoral laws, seeking to disrupt the election.
The penalty prescribed in the Election Law, as the canvass early, provides for the punishment, "responsible for the dissemination of advertising and, when proven their prior knowledge, the beneficiary of a fine of $ 5,000.00 (five thousand reais) R $ 25,000.00 (twenty five thousand reais), or equivalent to the cost of advertising, if that be greater. "

The canvass has been distorted by various candidates against impunity, feel free to adopt practices that constitute electoral campaign before the deadline established by the legislation. Another driver for this lies in the fact that the financial penalty is currently set by law, the rare times that a candidate is penalized, reveals negligible compared to the huge resources made available by the candidates, especially when it comes to presidential elections.
The Council of the Supreme Electoral Court - TSE, aware of the abuses and try to give more effectiveness to the Electoral Law, which regulates some of the main devices through a public hearing held in election years.
The marketing tasks inherent in the exercise of parliamentary politics, electoral bare elements, is also allowed, even in an election year because media outlets are free.
The canvass early goal can be coated negative disparage, discredit, disparage another candidate, a fact equally culpable in this case would have the anticipated negative electioneering.
Simulations to avoid disclosure of candidates, it should be emphasized that punishment conveys to the responsible disclosure and the candidate, when the latter proved their prior knowledge. This is because the ease of today's disclosures by candidates and parties prevent, control over all its representatives, activists and supporters, who can create in minutes, a mass campaign, without which the candidate know what is happening.
Obviously, this disclaimer does not apply if advertising is overt or knowable by the applicant, by proportion. (Regimental Appeal in Special Election Appeal No. 25069 - Class 22 th, j. 19.05.2005, 02:09 DJ. 2005, p. 153).
The disclosure and without moderate direct correlation with the elections, shall be permitted:
The mere disclosure of the names and work, without reference to elections, nominations or votes, does not characterize early electioneering, or allow the application of the fine provided for in art. 36, § 3 of Law No. 9.504/97. (C. TSE, the Regimental Appeal Interlocutory Appeal No. 5275 - 2nd Class, j. 02/01/2005, DJ 15.04.2005, p. 163).
Another nuance that has gained the spotlight in early electioneering, are the institutional advertising executive and legislative branches. This is because, before the electoral rules of obedience, such advertisements should strictly observe the art. 37 of the Federal Constitution on legality, impersonality, publicity and efficiency. Thus, the messages conveyed by Federal, State, Municipal and District, made the sacrifice of the public coffers, not to praise or favor administrators, but only inform people about what is being done. The care should be taken in institutional advertising, because you load the image of public administration. Accountability is also allowed in this mode, you lose the sense after the implementation of the new Access to Information Act, Law no. 12.527/2011.
It also allows the account of the doings of the administration, since there is no mention of the application, comparisons to other administrations, sites, or arising from any given campaign. No wonder it's outdoor thanksgiving the population with public money also configure blatant electioneering and are irregular.
The TRE recently (03/04) has suspended an advance advertising of the mayor José Fortunati PDT TV in the Porto Alegre - RS, because it presents in front of public works, like the subway in Porto Alegre, as well as showing the action it intended to take to solve the problems. The performance was conducted by PCdoB.
In Recife, the Attorney General - MP, John decided to represent the mayor of Costa PT and Secretary of Education of the City, in anticipation of electoral  advertising , having been accused of that ask neighbors and family to vote for him.
On the other hand, the context in which the advertisement is inserted must be taken into account, as well as the request for votes, so that a governor has been acquitted, not to make the express request of votes, while exposing the platform and political projects during a interview:
" advertising  early.1 election. The art. 36-A of Law No. 9.504/97 establishes that it is not considered electioneering anticipated that pre-candidate interviews or programs, including the exposure of platforms and political projects, provided that no request for votos.2. Given the context in which interview was conducted with the governor, pre-candidate for reelection during a public event, and no evidence was represented by the excess, it is not characterized the canvass antecipada.Agravo Regimental not provided. "(AM 394 007, Rapporteur: Min ARNOLD Versiani MILK SOARES, Date of Judgment: 24/11/2011, Date Published: DJE - Justice Electronic Journal, Volume 024, Date 2/2/2012, Page 44)
The context also serves to characterize the election offense that omitting:
Requests for clarification. EFFECTS infringing. OMISSION IN DEEMED relation to the question PLENARY. RECEPTION. ELECTORAL APPEAL DESPROVIDO.1 - Configured omission in judgment on the question raised orally in plenary, it is evident that there was offense to Article 275, paragraph II of the Electoral Code, must be received the Declaratory Injunctions in fact infringing, to supply the omission detected and modify the judgment that the appeal did not know and appreciate the merits recursal.275IICódigo Eleitoral2 - Distribution of advertising materials and transmission of messages in car sound from before the July 6 election year featuring canvass extemporânea.3 - The explicit linkage between the merits, the political action of the beneficiary as a community leader and his influence with the Mayor, on the one hand, and the closeness of the election October/2008 the other, the message is an advertisement in question, and even direct not only subliminar.4 - The absence of express request to vote and mention of future elections are not alone sufficient to distort the electoral campaign early. Just a set of actions in a given scenario, conditions, and court time, a glimpse of the intention to show personal qualities and political, can pre-enable a candidate to join in public life, earning thereby the sympathy of the electorate to reaching goal is not clearly publicized, but deflui course of time, attitude, posture and action of the applicant for public office eletivo.5 - Embargoes Declaration welcomed to modify the trial and give rise to knowledge of the resource, denying, however, dismissed. (GO 3810, Rapporteur: ELIZABETH MARIA DA SILVA, Date of Judgment: 05/08/2008, Date Published: PSESS - Published Session)
Freedom of press and expression of thought, despite being systematically attacked by the government protections are guaranteed by Art. 220 of the Federal Constitution, the media (radio, TV, newspapers, facebook, twitter, etc.) are free to report and politicians free to give interviews, but the focus should be on facts and not political.
If the focus is simulated or masked, incurs the infraction:

Regimental Appeal. APPEAL OF INSTRUMENT. ELECTION  advertising  extemporaneous. SETTING. FREEDOM OF THE PRESS. NON-INFRINGEMENT. Dismissal. 1. The dissemination of news story that merely emphasize the personal qualities of a particular candidate, having him as the fittest for the office and reducing the importance of its competitors in the polls, configure illegal electioneering.Previous. 2. The performance of the State in order to prevent any excesses compromising the electoral process does not violate the freedom of the press. Precedents. 3. Aggravation regimental lacking. (EC 390 995, Rapporteur: Min Aldir GUIMARÃES JUNIOR BIRDIE, Date of Judgment: 24/03/2011, Date Published: DJE - Journal of Electronic Court, Date 4/19/2011, Page 54)
Extra care should be involved directly in the militants election campaign and advisers as to advertise in advance, especially on social networks Orkut, Twitter, Facebook and microblogs, because the TSE decided that the messages conveyed in them also feature advertising, as one can extract from the trial where Indian Coast (ex - DEM today PSD), who had tweeted "The responsibility is huge. But I count on your support and your vote. Serra Chairman: Can Brazil more."
However, I consider it worth noting, as did the ministers Dias Toffoli, Carmen and Lucy Gilson Dipp, which called for the legalization of advertising on Twitter at any time. For them, the microblog would be restricted through an exchange of ideas, unlike television and radio. So at least you can believe that it would be possible to reduce the penalty in these cases, the dosimetry service penalties and criteria of reasonableness and proportionality, the limitation of media and form of placement (characters limited by the system itself).
At this point we must emphasize that citizens not involved in the electoral process, have broad freedom to communicate freely. What has been seen much on social networks are militants disguised as disinterested people in jobs or benefits to the election process, but later will benefit from the result.I believe that in these cases, such irregularities are also passives of punishment. Obviously, the order of vote Express transforms the status of citizen and lays bare the true intention of the militant or advisor, actually punished as others.
Parliamentarians and other dependents of the treasury should be aware of deadlines descompatibilização already issued for 2012, under penalty of having their ads figured as untimely.

It's accurate to say that the rule would not advertise, but those who do, given the natural reasons linked to political and intense among the candidates, adhere only to personal promotion disassociated from any set of elements that characterize the electoral advance of the intention . The overflowing in order to gain the sympathy of voters can reverse into negative ads, because the electorate does not look favorably upon, pre-sanctioned candidates before the election period. Politics is not an aseptic environment, but certain attitudes can desbocar, what precisely is intended to avoid, not counting what is morally right, and the legislation was created precisely to try to maintain a balance between candidates and parties, making the miniature economic power of one over the other, emphasizing the diversity of ideas and opinions instead of controlling the masses by intensive  advertising.


________________________Sources:BRAZIL. Constitution (1988) Constitution of the Federative Republic of Brazil. Brasilia: Senate, 2007.BRAZIL. N.9.504 Law of 30 September 1997. Establishes standards for elections. Official Gazette, Brasilia, 1st October 1997.
Electoral Code (Law No. 4.737/65)Law on Political Parties (Law 9.096/95)Election Law (Law No. 9.504/97)Resolution No. 23.370/2011 TSE - political propaganda and prohibited conductResolution No. 23.367/2011 TSE - Complaints, representations and claims responseResolution TRE / MG No. 876/2011 - Power of policeCosta, Adriano Soares da. Electoral Institutions Law. 6. and d. Belo Horizonte: Del Rey, 2006.CONEGLIAN, Olivar. Election Propaganda. 8. and d. Curitiba: Juruá, 2006.Gomes, Jose Jairo. Political and Election Propaganda. Belo Horizonte: Del Rey, 2006.
_______________________Press information:
Guilherme Franco de Camargo person is a lawyer's office Franco de Camargo - Attorneys at Law, acting in the areas of Business Law and Election in the Campinas area.www.francodecamargo.com.bre-mail: guilherme@francodecamargo.com.br / Tel: (19) 3383-3279