X ban in Brazil: Disdainful defiance meets tough enforcement

Veridiana Alimonti is associate director for Latin American policy at the Electronic Frontier Foundation.

The conflict between X (formerly Twitter) and Brazil’s judiciary has finally come to a head. The blocking of X from use in Brazil highlights the consequences of a tug-of-war infused with hefty political and economic powers and the weaponisation of free speech.

Despite ramifications for freedom of expression, thoughtful examination of whether this interference was necessary and proportionate falters. It has been hampered by secrecy over legal proceedings in the high court and the political polarisation that has taken root as the feud escalates.

Musk’s disdainful defiance has been met with drastic enforcement measures. Much is on the line for democracy, the rule of law and free expression when such power struggles ramp up.

The suspension is only the latest chapter in a lengthy back-and-forth between X and Brazil's courts.

In August, Supreme Court Justice Alexandre de Moraes ordered X to suspend seven accounts within an investigation of coordinated actions to spread disinformation and destabilise democracy amid events leading to the January 2023 riots that targeted Congress, the presidential palace and the Supreme Court. 

When X didn’t suspend the accounts, the court issued an arrest warrant against a company lawyer in Brazil.

X also refused to name a legal representative in Brazil, choosing to pull the app rather than adhere to the law.

As Musk challenges the legitimacy of Brazil’s Supreme Court, millions of Brazilian X users are caught in the crossfire. Meanwhile the court has employed the legal mechanisms at its disposal to preserve its authority and enforce its decisions.

Brazilians can face daily fines of around $9,000 (50,000 reais) if they use tools such as virtual private networks (VPNs) to circumvent the ban. And despite disagreement from another judge on the indiscriminate application of such fines, and a lawsuit from the Federal Council of the Brazilian Bar Association, they remain in force.

It's undeniable that the Supreme Court has played a vital role in safeguarding Brazilian democracy in recent years. Yet this has also relied on an exceptional investigative power that Moraes has employed, often amid controversy.

There are limited circumstances where the Supreme Court can conduct investigations. It has used that power frequently during Jair Bolsonaro’s administration, as other institutional mechanisms failed to constrain the former president’s anti-democratic agenda.

Moraes-led investigations have also raised concerns: they lack transparency, have been extended repeatedly, and involved broad requests for user information. It has become usual to order platforms to suspend accounts, often indefinitely, rather than individual offending posts. Also, a great deal of power is concentrated on Moraes as investigations into “digital militias,” anti-democratic acts, and fake news, are all linked proceedings under his purview.

These are all issues that deserve careful consideration to preserve human rights, due process, privacy, and freedom of expression.

Meanwhile, Musk’s attacks on the legal orders X has received, and insults hurled at Moraes, align with efforts by the Brazilian far-right to discredit the legitimacy of Supreme Court and, ultimately, the functioning of Brazilian democratic institutions.

This is striking, since X has had no problem complying with other government orders worldwide, including its willing compliance with problematic requests in Turkey and India.

Musk's significant economic and informational power, including through the Starlink satellite network’s deployment in Brazil, worsens this situation and spotlights the hazards of the concentration of digital platforms and their impact on global public debate.

Musk must adopt a coherent stance on his previous comment that X “can’t go beyond the laws of a country”. He should also rely on the due process of the law to advance the company’s grievances before Brazilian courts. 

Meanwhile, Brazil’s Supreme Court should review its position that platforms cannot legally contest the suspension of accounts on behalf of their users. And it should also carefully consider the controversies around Moraes-led investigations and ask whether means employed have been necessary and proportionate.

Democracies are grounded in the ability to fairly establish and enforce laws in compliance with international human rights.

To properly handle clashes like this, we must find ways to tackle the concentration of economic and political powers. We need also to avoid free expression becoming a pawn in the polarisation chessboard. Freedom of expression is vital to foster open dialogue and diverse viewpoints, and it should not be used to pursue personal agendas at the service of anti-democratic goals.