Story of a Death Foretold

On 30 August 2024, the Brazilian Supreme Federal Court Justice Alexandre de Moraes suspended X (former Twitter) in Brazil. The ban followed after the company disregarded multiple judicial orders to block several high-profile accounts, including a federal senator who was criminally indicted for their involvement in disinformation campaigns against the Supreme Federal Court (STF) and other Brazilian institutions. A five-justice bench of the Court then upheld the decision on 2 September.

The decision follows a critical deterioration of the relationship between Elon Musk and  Brazilian authorities, which became confrontational in April (Avelar, 2024) and hit an all-time high point of contention when the tech billionaire closed X’s Brazilian office in mid-August. Musk claimed that the platform would continue to provide services in Brazil even without a formal office, team, or legal representative, which infringes a requirement for foreign companies operating in the country (art. 1.138, Brazilian Civil Code). The billionaire has been clear of his intention to disregard the country’s rule of law and openly contest the legality of judicial orders outside legal proceedings.

While Musk’s attitude towards the Brazilian rule of law can be defined as delinquent, entitled, and anarchist, the Supreme Court’s decision to ban the platform in the country and establish hefty fines for any Brazilian attempting to use a VPN to access it is also controversial. Within the complexity of democratic erosion and digital policy in Brazil, the judicial expansion of power vis-à-vis the struggle against disinformation has been observed at least in the last five years, and the lack of a general legal framework regulating digital platforms supports these immediate but many times inefficient and legitimacy eroding measures. The exceptional nature of this case should not overly influence the broader Brazilian debate on regulating digital platforms. Effective regulation requires technical expertise and a solid institutional framework directed towards public values.

I. The threads building the tapestry of judicial control of X in Brazil

Court orders blocking the use of an application as a sanction for its non-compliance are not a novelty in Brazil. After the promulgation of the Internet Bill of Rights (Law no. 12.966/14, also known as Marco Civil da Internet) in 2014, the issue became contentious following four state court orders between 2015 and 2016 blocking WhatsApp for the company’s non-compliance with orders attempting to surpass its end-to-end encryption. The federal implications of these decisions and their controversial interpretation of the legal framework allowing such sanctions reached the Supreme Federal Court in 2016 (ADPF no. 403 and ADI no. 5527), with one of the rapporteur Justices (Min. Rosa Weber) initially deciding that the temporary suspension and prohibition of activities of digital platforms prescribed in article 12, III and IV, of the bill should only be used towards the activities of ‘collection, storage, retention and [treatment] of personal data or communications data’. A year later, Article 19 of the Internet Bill of Rights, defining a ‘judicial notice and takedown’ model of intermediary liability, was also submitted to the Supreme Court appraisal (RE 1.037.296 and RE 1.057.258), with both issues still pending a final decision.

A. Brazilian Constitutional Democracy at a Glance

However, the constitutional repercussions of the digital policy debate cannot be disentangled from the overall constitutional ideology that frames the rules and institutions interpreting constitutional norms (Barber, 2024). Brazilian democracy operates on a multiparty presidential system that relies on a strong president, an effective political parties’ coalition management, and an institutional framework capable of overseeing the president’s discretion (Bogéa, 2023). The constitution adopts a transformative character that empowers the Constitutional Court to implement its aspirational normative ideals with expanded prerogatives to enforce their decisions despite omissions from other branches of power (García-Jaramillo & Valdivieso-León, 2018; Werneck Arguelhes, 2020).

As such, the Constitutional Court boasts multiple crucial functions. It serves as a regular judicial court for cases involving political officials and representatives and as a constitutional court, resolving disputes on the abstract meaning and constitutionality of statutory law and normative administrative acts. Moreover, it acts as the final appellate Court for cases that incidentally interpret and apply constitutional provisions. In addition to its plurality of functions,  the Court’s justices wield significant powers in adjudication proceedings, particularly regarding the control of the docket agenda (Arguelhes & Hartmann, 2017), while also fulfilling additional duties in the Council for the Administration of Justice (CNJ), and the Superior Electoral Court (Conceição, 2024a).

B. Judicial Powers and Digital Policy:

As such, the constitutional proceedings concerning the regulation of digital platforms became subjected to the Constitutional Court’s proactive turn towards the protection of constitutional stability, curbing disinformation and the rise of authoritarian populist rhetoric during Bolsonaro’s mandate (Meyer & Neto, 2021). The turn included individual Supreme Court Justices’ activities on and off the bench, in their role within the Superior Electoral Court, and through the ex officio establishment of judicial criminal inquiries by the Chief Justice.

In 2019, the Court opened the Judicial Inquiry no. 4781 (informally known as the Fake News Inquiry) to investigate the use of disinformation promoting threats against the Court’s authority. While the constitutionality of having the Court absorbing prerogatives of the Federal Prosecutor’s Office and initiating criminal investigations was questioned, the Court’s jurisdiction was deemed constitutional (ADPF no. 572), with the exceptionality of this prerogative being supported by the Court’s bylaws as a framework to protect the institution’s autonomy in its broader constitutional function of guaranteeing the stability of the democratic regime and the protection of fundamental rights.

Throughout the pandemic and the general elections cycle of 2022, other ex officio investigations were established, such as (i) the Judicial Inquiry no. 4828 in 2020 (dubbed the “Antidemocratic Manifestations Inquiry”), investigating the financing and organisation of antidemocratic manifestations dismantling the Court’s authority and in support of a military coup, (ii) the Judicial Inquiry no. 4921, in 2021 (known as the Digital Militias inquiry), investigating the use of social media platforms by corporations and individuals organising disinformation campaigns to incite violence, and (iii) the Judicial Inquiry no. 4922, investigating the criminal responsibility of the organisers, financiers, and participants of the 8 January attempted coup d’état.  These inquiries and the criminal cases concerned with political actors attached to antidemocratic manifestations were assigned to Justice Alexandre de Moraes.

During the Court’s crusade against disinformation, levelled critiques were raised concerning the possible erosion of the Court’s legitimacy in the long term, considering the inflammatory discourse against its more political role during a time of democratic backsliding and the sustainability of maintaining a judicially-led regulatory framework over the often socio-technical aspects of digital regulation (Conceição, 2022a; 2022b, 2024b).

C. The Convergence of Constitutional and Digital Politics

The most recent suspension of X falls within this context. Elon Musk perceived an alignment between his interests in the region, his particular Americanised and market-based view of free speech, and the claims of far-right supporters in the country that cloak hate speech utterances under the guise of individual liberties while demanding the dismantling of the institutional framework constitutionally defined to safeguard freedoms and rights (Avelar, 2024).

The decision can be perceived as setting a very dangerous precedent regarding policy and internet freedoms. The order initially established hefty fines for internet users who tried to circumvent the blackout through VPNs (a measure swiftly amended). Additionally, it downgraded the potential economic and social damage that suspending the platform nationwide can have towards users who use it not only for political communication.

While in this particular occasion, academics agree that protection of the country’s digital sovereignty would require nothing less than such extreme measures,  the exceptionality of the case should not be perceived as leading rationality towards the broader debate concerning the regulation of digital platforms, particularly considering that such regulation relies on an extensive institutional framework, with technical expertise, that becomes most effective when supported by the architectural affordances of platforms themselves, instrumentalised through public regulations towards public values (Rahman, 2018).

II. An Infrastructural Perspective of Platform Regulation Beyond Courts

Unravelling the architectural aspects of social media platforms is not a menial task, especially in X’s case. Musk’s economic group incorporates different elements of the communications value chain: Starlink provides the telecommunication infrastructural layer that is essential for over-the-top services, such as X. While this concentration is not illegal, it can have detrimental effects on rights and freedoms, as it could be perceived with Starlink’s initial resistance to comply with the judicial order. Thus, Musk’s disregard for Brazil’s regulation of hate speech and overall rule of law is particularly concerning since, in addition to instrumentalising X and its digital infrastructure of privatised arena of public discourse (DeNardis & Hackl, 2015), it also maintains exclusive access to a powerful internet provider, impacting not only the social media sphere but the internet itself.

In this broad platform architectural context, consideration of online speech in content moderation is merely the top of the iceberg (Douek, 2022; Klonick, 2023), and the regulatory reaction to this exercise of private power must shift towards governing social media design and architecture, rather than solely focusing on content-focused mandates. This approach includes a particular policy consideration that strikes a balance between multiple institutional actors, civil society organisations, and the platforms themselves, such as some of the components recognised in the EU’s Digital Service Act (DSA) risk-management tools (Husovec, 2022). Unsurprisingly, the Court’s order to block X seeks some legitimacy out of the normative approach of DSA, referring to the legislation (page 50 of the decision) but not considering the region’s policy considerations and the established institutional framework to combat online hate speech.

III. The Suspension in Perspective: Surprising – ma non troppo.

Beyond the increasing expansion of the Brazilian Supreme Federal Court’s prominence in tackling disinformation, online hate speech, and direct attacks on the stability of the country’s constitutional democracy, the country’s difficulty in passing legislation setting a general framework for regulating platforms also predestines the current impasse between the Court and Elon Musk. The Congressional Bill no. 2630, entitled the ‘Brazilian Internet Freedom, Responsibility and Transparency Act’ but more commonly known as the ‘Fake News Bill’, has been under deliberation since 2020 and after substantial changes to its drafts and attempts to pass the legislation, it was practically dismissed in April this year when the speaker of the Chamber of Deputies set a working group to draft a new proposal, dismissing years of public consultation and deliberation.

Given the further erosion of the credibility and legitimacy of Brazil’s judicial system, the Supreme Court’s regulatory role must be tampered with cautiously. Given Brazil’s ongoing authoritarian risks and political polarisation, effectively addressing digital platforms must go beyond short-term concerns and involve a more extensive regulatory discussion, drawing on the perspective and institutional knowledge of the Legislative and Executive branches for a democratic and future-proof solution.