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Democracy emerges victorious in X vs Brazil feud

By Janine Erasmus


The balance between promoting freedom of speech and preventing the spread of disinformation is tricky to manage, let alone achieve. Elon Musk’s recent altercation with Brazilian Supreme Court Justice Alexandre de Moraes regarding the operation of Musk’s controversial social media platform X in the country, is an eye-opening example of the complexity of ensuring that the rule of law of a sovereign nation is upheld, while simultaneously allowing freedom of expression and clamping down on undesirable content.


Formerly known as Twitter, X was famously acquired by Musk in October 2022 for $44-billion, and in the two years since has become known as a platform that takes less action against disinformation, hate speech, online abuse, and other undesirable behaviours than it used to in the days of Jack Dorsey and his cohort of co-founders. 


Musk’s first move of consequence, just days after the acquisition was finalised, was to fire then CEO Parag Agrawal and CFO Ned Segal and begin to reduce the staff size to what is now about a third of what it used to be. He also dissolved the board of directors and appointed himself temporarily as CEO. Musk now serves as board chairperson and chief technology officer.


The instability caused by these wide-ranging changes has had a glaringly negative impact on X’s perceived ability - or willingness - to regulate the spread of harmful content. The Center for Countering Digital Hate revealed, in a study released just a few months after Musk’s acquisition, that hate speech on X increased in that short time, despite the billionaire’s claims to the contrary and subsequent rejection of the study.


But the fact is this: the level and intensity of content moderation on X took a dive in the period after Musk took over. In fact, Musk weakened the platform’s safety and trust capabilities by significantly reducing the size of the team handling that function. Only recently does the company appear to be doing something about it.


But this isn’t good enough for the European Commission, which expressed concerns about the revelation in X’s global transparency report for the first half of 2024 that its team of content moderators is now even smaller - 20% down since the preceding report in October 2023. The commission wanted X to answer questions as part of an on-going investigation into whether the platform may have violated the EU’s Digital Services Act in certain areas, including content moderation and risk management.


“[We are] also seeking further details on the risk assessments and mitigation measures linked to the impact of generative AI tools on electoral processes, dissemination of illegal content, and protection of fundamental rights,” the commission said in May.


And it certainly wasn’t good enough for Brazil. 


X vs Brazil

“X’s legal battle with Brazil’s Supreme Court raises important questions about platform regulation and how to combat disinformation while protecting free speech,” said Brazilian digital law expert Yasmin Curzi de Mendonça during the height of the virtual fracas. “And while the focus is on Brazil and Musk, it is a debate being echoed around the world.”


The crux of the matter was X’s refusal to comply with the Brazilian Supreme Court’s request for the IP addresses of people suspected of being involved in a massive disinformation campaign just before the presidential election in 2022, and subsequent violence by far-right supporters of the losing candidate Jair Bolsonaro in a similar vein to the storming of the US Capitol after Donald Trump lost to Joe Biden two years before. The court also instructed social media platforms to suspend the accounts of people linked to these unlawful activities.


These actions of the Supreme Court fall under two inquiries - the digital militia inquiry into “the alleged criminal activities of groups suspected of spreading fake news on social networks to influence politics”, and the anti-democratic acts inquiry into those found to have been involved in the January 2023 violence.


X refused to co-operate with the court, saying that Moraes’ actions were illegal and that his agenda was to censor his political opponents. Musk decided to close up shop, saying that Moraes had made threats towards the then legal representative.


When X’s offices closed in mid-August, leaving it without a legal representative as is required by law, the company missed a court deadline of 29 August to name a replacement, and Moraes ordered the ban two days later. X’s conduct, said the judge, “clearly intends to continue to encourage posts with extremism, hate speech and anti-democratic discourse, and to try to withdraw them from jurisdictional control”.


The requirement for a legal representative arose from Brazil’s Marco Civil da Internet, the Civil Rights Framework for the Internet, a law setting out principles, rights, and guarantees for users. The framework, while making no prescription for content moderation, includes a provision for a “judicial notice and takedown”, where platforms must remove harmful user-generated content if ordered by the court, failing which they will be held liable.


The legal representative, therefore, is there to receive notification of such court orders and to take the relevant action.


X would remain inaccessible in Brazil until it complied with the Supreme Court’s requirements. It took just a few weeks for Musk to realise that Moraes meant business, and towards the end of September the platform finally began to take the steps required of it, saying the appointment of a legal representative was imminent. The company also finalised the paperwork for this appointment, paid around US$5-million in fines incurred when it unexpectedly became accessible during the period of banning, and satisfied the court that all accounts under investigation had been blocked. Ultimately, it acceded to all demands.


In response, Moraes issued an order in mid-October to end the suspension.


Victory for democracy

As many have since expressed, the X ban in Brazil was never about censorship. Musk tried hard to spin it as such, childishly vilifying Moraes in the process, but the reality was that the head of a private company thought he was above the law and tried to undermine a democracy-supporting institution which was fighting against mis- and disinformation.

One of the basic tenets of democracy is the rule of law, which means that a nation’s laws apply equally to all people, and nobody is exempt. Everyone must play by the rules - which is exactly what Musk did not want to do.


So democracy won in the end, because the Brazilian judiciary stood firm and insisted on X abiding by the laws of that country - particularly because X is known in other parts of the world for facilitating the spread of far-right misinformation and anti-democratic content, and putting human rights in jeopardy.


Anti-fake news/hate speech organisation Sleeping Giant Brasil said in a statement (fittingly) released on X: “The suspension was an important measure to ensure that all companies, including Big Tech, comply with and respect Brazilian laws, particularly when the human rights of our citizens are at stake and our democratic institutions are being undermined.

Contrary to some misconceptions, said the organisation, X was not suspended in Brazil to suppress freedom of speech. “The Supreme Federal Court’s judicial decisions came after a series of orders that were ignored by the social media company. Furthermore, Elon Musk has on several occasions explicitly challenged the authority of the Supreme Court.”


Brazilian political commentator Gerson Camarotti agreed, in an interview, that the ban was about non-compliance with judicial decisions. He added that X wasn’t missed much during its absence, as millions of its users simply switched to alternatives such as Threads or Bluesky for the period.


“Nobody in Brazil died because of the absence of X.”


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