This article explores the current debate surrounding the suspension of X by the Brazilian Federal Supreme Court (STF), and the issues that have arisen surrounding free speech, sovereignty, and the democratic legitimacy of Brazil.
On the 30th of August 2024, in a decision that was later unanimously upheld by a STF panel, Alexandre de Moraes, a justice of the STF and president of the Superior Electoral Court, suspended X [1]. The suspension was the latest development in the feud between Moraes and Musk, that centres around misinformation on X.
The facts: the Block of X
In April 2024, X stated they received a specific court order from Moraes to suspend the accounts of those users being investigated for the coup attacks by Jair Bolsonaro supporters (following the 2022 Brazilian general elections, where Luiz Inácio Lula da Silva won) occurring on January 8th 2023. The legislation relied upon by Moraes to suspend the accounts was the “Marco Civil da Internet”, which was signed into law by the executive Brazilian government in 2014[2]. This law “establishes the principles, guarantees, rights and obligations for internet use in Brazil”. Specifically, section III, Article 19 outlines civil liability for the provider of internet applications for damages from user-created conte+nt where the provider does not remove the unlawful content following a specific court order.
The STF then reinforced the order several times, adding daily fines for noncompliance. Nonetheless, rather than complying with the court orders, Elon Musk, X’s chairman, decided to shut down X’s offices in Brazil. The STF subpoenaed Musk, and on the 28th of August ordered X to identify a legal representative (a legal requirement as per Chapter XI, Article 1,138 of the Civil Code of Brazil[3]) within 24 hours, or face the suspension of X[4].
Therefore, given the resistance to follow the judicial orders, on the 30th of August, Moraes suspended X until the judicial rulings were complied with, fines were paid, and X named a legal representative in Brazil. Part of this ruling instructed telecommunications providers to remove access to X, and introduced a penalty on individuals in Brazil who accessed X through a VPN.
From then, X became inaccessible to the Brazilian public, until the IP address of X was changed, allowing access to the site from Brazil on the 18th of September. The new IP address corresponded to hosting service companies (such as Cloudflare). Brazilian internet providers then received another block of X’s new IP address from Moraes. As this is a cloud platform that houses other websites, there could be a ‘cascade of takedowns’[5] as a result.
Avoiding the Law, and Freedom of Speech
As explored above, X initially refused to comply with the orders to suspend those identified accounts due to freedom of speech concerns.
Musk views freedom of speech as a protection for all speech, not limited by content. Furthermore, X has its own free speech policy that establishes ‘defending and respecting the user’s voice’ as one of the core values of X[6]. Hence, in X’s view, the removal of suspended accounts would violate this commitment to users.
This concern was amplified by Musk through the use of his personal X page, where Musk criticised Moraes (threatening to publish incriminating behaviour of the judge[7]), and questioned the legitimacy of Moraes as an unelected judge[8]. X then released a statement that Moraes threatened X’s legal representative in Brazil with prison[9], and as a consequence, X would be withdrawing from its Brazilian offices, leaving X without representation in Brazil. And, finally, X changed its IP address, allowing users in Brazil to access the platform, in a move X later apologised for as ‘inadvertent and temporary’[10].
The STF has viewed the lack of co-operation by Musk and X as an act of disrespect against the authority of the Brazilian courts. Specifically, the withdrawal of X and removal of their legal representative has been interpreted by the STF as an attempt to avoid the order to suspend accounts by leaving the country. Similarly, the change of IP address of X was considered an attempt to circumvent the suspension enforced by Brazilian law.
It is easy to see why the STF is cynical as to Musk’s motives, especially given his lack of engagement with the judicial process, and his constant questioning of the legitimacy of Brazil’s institutions. Moreover, it is worth noting that much of the criticism that Musk has levered against Brazil and Moraes for being anti-democratic is unfounded – one such example is the criticism levered against Moraes for being an unelected judge, as the judiciary is not typically elected elsewhere in the world, but instead appointed.
The STF has a different interpretation of freedom of speech. The legislation relied upon for X’s suspension (the ‘Marco Civil da Internet’) is the same legislation that has as a principle the guarantee of freedom of speech (Chapter I, Article 3, I), and recognises that the ‘discipline of internet use in Brazil is founded on the basis of respect for freedom of expression’ (Chapter I, Article 2)[11].
Moraes argues in his vote that Musk has ‘deliberately confused censorship with the constitutional prohibition of hateful speech and the incitement of anti-democratic acts’[12]. This distinction Moraes made between the right to freedom of speech, and the ‘inexistent right to aggressive speech’ is important to identify, as hate speech (including incitement of violence) is not protected. This is not a controversial position, the UN released a Rabat Plan of Action outlining a test for hate speech, and most countries have laws explicitly targeting hate speech[13].
The issue that arises is not that hate speech can be censored, but what constitutes hate speech, and when attempts to stop it infringe upon freedom of expression. The STF originally ordered the block of the X accounts because of their connection to the attempted coup, meaning the accounts were connected to an illegal act and thus not protected by freedom of speech under Brazilian law. It is worth noting that if users are affected by a block on their accounts, they could pursue judicial channels themselves.
Whether or not this was the correct application of freedom of expression according to Musk’s view, the view of a foreigner, is not relevant. At best, X is a middle-man, providing a platform for users to present their opinions. Yes, the platform is providing a valuable service, but it should not be able to pass judgement and decide unilaterally to ignore the laws of the country it operates in, and expect no consequences. X provides this service at the discretion of the government of the country it operates in, not the other way around.
If freedom of speech were the reason for Musk’s principled stand, then he would have fought for it elsewhere. In April this year, X agreed to suspend 212,000 accounts in India ‘for violating different terms of use norms’ where farmers protesting Narendra Modi’s government were targeted[14]. In May, X agreed to suspend several accounts in Turkey linked to the political opponents of Recep Tayyip Erdogan[15].
Therefore, it appears that the struggle between Brazil and X is more about soft power and sovereignty, rather than, the protection of freedom of expression.
Some considerations
- Social Media Soft power
Musk’s X wields tremendous soft power, as we have seen from the incredible publicity this case has drawn worldwide following his tweets. The narrative presented by him – of a fight for freedom of expression, and the corruption of Brazilian officials – has led to tens of thousands Brazilians demonstrating in protest against Moraes for the ban, and the targeting of Moraes online[16]. The nuance of the court judgement has been lost amid the noise of social media, and the court of public opinion has taken hold, with the discourse centering around free speech rather than sovereignty.
This is a playbook Musk has employed before, and a pattern of crying censorship wolf has emerged. Earlier this year, X was taken to court in Australia following their refusal to remove videos depicting a Sydney church stabbing that was religiously motivated[17]. This case concerned the removal of content abroad rather than the banning of accounts, and was eventually dropped after a Federal Court judge recognised it would not be possible to force other countries to abide by Australian regulations abroad.
The eSafety commissioner who brought the case was personally targeted by Musk, who called her a “censorship commissar”, causing an “avalanche of online abuse” to fall on her[18]. Threats were made against the commissioner’s employees and family, and credible death threats have been made against the commissioner. A Columbia University report found the commissioner was mentioned in almost 74,000 posts on X before the court proceedings, with the majority of those messages being negative[19]. The issue of Musk targeting those whose job it is to ensure hate speech is regulated remains, as the impact on the individuals involved shows how soft power in the wrong hands can become very powerful indeed.
At this point, if the STF backs down they are admitting that the soft power of a large social media company trumps that of the state.
- The Rule of Law
To quote Dicey, ‘no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm’[20].
Legal philosopher Gerald J. Postema argued that the rule of law is threatened when ‘the internet is regarded as a space beyond the reach of law, in which economically and politically powerful agents can exercise arbitrary power beyond the reach of any public norm’[21]. Luckily, we do not yet live in a world where this is true. Try as he might, Musk cannot circumvent the law by announcing on his soapbox that he disagrees. By choosing to operate in Brazil, X must abide by Brazilian law and procedure. If X disagreed with the STF’s interpretation of freedom of expression, it could have been fought through the courts, but Musk removed that option by failing to engage in the process. In rejecting the courts, Musk rejected the rule of law.
- Anti-democratic sentiment in Brazil
The conflict between X and the STF is especially problematic given the historical and political context in Brazil, as the suspension of the accounts is a part of an investigation into anti-democratic acts. Specifically, X was ordered to block the accounts of people who were being investigated for obstruction of justice and the crime incitement against federal police authorities, due to their participation in the failed coup attempt in Brasília on January 8th 2023.
After Bolsonaro, the former president, lost the 2022 Brazilian general election to Lula, a mob of Bolsonaro supporters attacked the federal government buildings in Brazil eight days after Lula’s inauguration. The coup has been likened to the January 6th Capital attack in the U.S in 2020, but some consider the attack on Brazil a greater threat to democracy. Indeed, it is important to note that Brazil was under military dictatorship in recent history, which began with a coup in 1964, and ended in 1985. Brazil is considered a relatively young democracy[22], which is especially fragile given the right-wing anti-democratic wave that grew under Bolsonaro.
Prior to the attack and during Bolsonaro’s presidency, the STF began a legal inquiry in 2019 into fake news, and campaigns attacking the STF and its justices[23]. As part of this inquiry, a series of investigations (including one on anti-democratic acts) were created by the STF.
As a result of the recent attack, the current Brazilian government and the STF are particularly sensitive to the rise of anti-democratic views, and the role of social media platforms in coordinating and planning these attacks. This explains why there has been such a push-back from the STF to the rejection of their orders by Musk, and his statements surrounding the state of democracy in Brazil.
Winners and Losers
This fight between a social media company and the STF has been fought before, namely between Telegram and de Moraes. In this case, Telegram was suspended by Moraes for discrediting the Brazilian fake news bill, and also for not having legal representation in Brazil[24]. In the case of Telegram, the orders were complied with.
In fact, it should not be this hard for a company to see that they are not going to win in a fight against the supreme court and the government. Whilst X and Musk presented a narrative on social media that right-wing groups have accepted in Brazil and around the world, this method of fighting against the application of Brazilian law would never have succeeded. Brazil has a strong judiciary , unlikely to bow to the pressure of one outside company (despite how powerful it is). Ultimately, it seems clear that in the case of Brazil, outside scrutiny would not change the view of the STF, the value they place in protecting the rule of law, and by extension, Brazilian sovereignty.
Beyond making noise, it is unclear what Musk and X hoped to achieve by continually refusing to comply with orders of the court, especially now they have given up and begun complying with the orders. Perhaps Musk simply believed he was above the law given the combined power of Starlink (crucial for providing internet access in remote parts of Brazil[25]).
One thing is clear, it is refreshing to see the laws of the state being applied indiscriminately to social media companies. In Brazil at least, Musk is not above the law.
[1] ‘Brazil Supreme Court panel unanimously upholds judge’s decision to block X nationwide’ https://apnews.com/article/brazil-musk-x-platform-moraes-shutdown-6942614705a4e85064f1d98628b49295
[2] ‘Marco Civil of the Internet in Brazil’ https://www.cgi.br/pagina/marco-civil-law-of-the-internet-in-brazil/180
[3] ‘Civil Code’ https://webfiles-sc1.blackbaud.com/files/support/helpfiles/npoconnect-qa/content/resources/attachments/brazil-law-civil-code-13.777-2018.pdf
[4] ‘Brazil top court threatens to suspend X operations in latest twist of ongoing feud’ https://apnews.com/article/brazil-top-court-elon-musk-de-moraes-028f7a9f65e3bf355518bbe9d1fbe564
[5] ‘Operadoras de internet recebem notificação para novo bloqueio ao X; rede social confirma manobra’ https://www1.folha.uol.com.br/mercado/2024/09/operadoras-de-internet-recebem-notificacao-para-novo-bloqueio-ao-x-rede-social-confirma-manobra.shtml
[6] ‘Defending and respecting the rights of people using our service’ https://help.x.com/en/rules-and-policies/defending-and-respecting-our-users-voice
[7] https://x.com/elonmusk/status/1776989005848207503
[8] https://x.com/elonmusk/status/1776989005848207503
[9] https://x.com/GlobalAffairs/status/1824819053061669244
[10] ‘Brazil fines Musk’s X for site’s return after ban’ https://www.bbc.com/news/articles/cy4dn4z02emo
[11] https://www.cgi.br/pagina/marco-civil-law-of-the-internet-in-brazil/180
[12] ‘Voto de Alexandre de Moraes’ https://static.poder360.com.br/2024/09/voto-alexandre-de-moraes-suspensao-x-stf-plenario-virtual-1.pdf
[13] ‘OHCHR and freedom of expression vs incitement to hatred: the Rabat Plan of Action’ https://www.ohchr.org/en/freedom-of-expression#:~:text=The%20Rabat%20Plan%20of%20Action%20on%20the%20prohibition%20of%20advocacy,Bangkok%20and%20Santiago%20de%20Chile)
[14] ‘Musk’s X Banned in Brazil’ https://www.lawfaremedia.org/article/musk-s-x-banned-in-brazil
[15] ‘Musk’s X Banned in Brazil’ https://www.lawfaremedia.org/article/musk-s-x-banned-in-brazil
[16] ‘Brazilians rally to protest supreme court judge’s decision to ban X’ https://www.ft.com/content/142a6d95-b06e-47e3-a605-a203e2bc432f
[17] ‘These aren’t just words’: The woman threatened for taking X to court’ https://www.bbc.co.uk/news/articles/cx2ymd32g2eo
[18] ‘’These aren’t just words’: The woman threatened for taking X to court’ https://www.bbc.co.uk/news/articles/cx2ymd32g2eo
[19] ‘It’s Everyone’s Problem: Mainstreaming Responses to Technology-Facilitated Gender-Based Violence’ https://igp.sipa.columbia.edu/sites/igp/files/2024-09/IGP_TFGBV_Its_Everyones_Problem_090524.pdf
[20] ‘The Rule of Law’ https://plato.stanford.edu/entries/rule-of-law/
[21] ‘Musk’s X banned in Brazil’ https://www.lawfaremedia.org/article/musk-s-x-banned-in-brazil
[22] ‘Here’s what’s different about the Brazil attack compared to Jan. 6’ https://www.pbs.org/newshour/world/what-the-attack-in-brazil-says-about-far-right-movements-around-the-world
[23] ‘Musk’s X banned in Brazil’ https://www.lawfaremedia.org/article/musk-s-x-banned-in-brazil
[24] ‘Musk’s X banned in Brazil’ https://www.lawfaremedia.org/article/musk-s-x-banned-in-brazil
[25] ‘‘Can’t live without it’: alarm at Musk’s Starlink dominance in Brazil’s Amazon’ https://www.theguardian.com/technology/article/2024/sep/08/alarm-at-musk-starlink-dominance-brazil-amazon
