The Right Lessons from the Flap Over X in Brazil

César Muñoz Acebes is Brazil director and Deborah Brown is deputy director for technology and human rights at Human Rights Watch.

Elon Musk pushed Brazil´s Supreme Court Justice Alexandre de Moraes into a stare-down that culminated in the shutdown of X in the South American giant.

Then Musk backed down. The social network complied with Supreme Court court orders that Musk had vociferously rejected before, and on October 8 Justice de Moraes ordered access to X in Brazil to be restored.

This case is a cautionary tale, underscoring the need for social media platforms and authorities to do a lot more to center human rights.

Background

The shutdown of X was rooted in a series of court orders to suspend accounts that were harassing and publishing photographs of a federal police officer who worked on investigations led by Supreme Court Justice Alexandre de Moraes, and of his family, including a child. One account reposted one of the pictures of the officer under the title “Wanted.” Another user replied, “dead or alive?”

In response to X´s repeated failure to abide by, or even appeal, Supreme Court decisions over three weeks, Justice de Moraes ordered the shutdown on August 30, and a chamber of the court affirmed his ruling on September 2. The suspension of X adversely impacted the rights to public participation, freedom of expression, and even access to information for millions of X users in Brazil.

Brazilians could not participate in global conversations happening on X, whether about the impact of devastating forest fires across Brazil and South America, the US elections, or even the Emmy Awards. There was also a loss of Brazilian voices in the debates on X.

It's not clear that Justice de Moraes considered whether the shutdown was a proportionate or necessary measure, as his leaked decisions did not discuss the rights of users.

Justice de Moraes’s order harmed internet users in additional ways. He initially prohibited downloading a virtual private network (VPN), which permits access to blocked content and is widely used to enhance overall digital safety and privacy, although he later rescinded that order.

Justice de Moraes left in effect a fine of 50,000 reais ($9,090) against anyone who used VPN to access X in Brazil, a disproportionate measure that would punish people seeking to exercise their rights to public participation, free expression, and access to information. For instance, a Brazilian who spent years posting on X and building an audience there risked a fine that was 25 times Brazil’s monthly minimum salary if they tried to access the platform using a VPN, even just to save their posts or access previously bookmarked ones. The prohibition of VPN use in particular affected journalists who used X for their reporting.

Scrutinizing the judicial process

Justice de Moraes–who was nominated to the bench by Michel Temer, a conservative former president–is leading two inquiries examining social media content that threatens democratic institutions and the democratic system.

That threat is very real, as highlighted on January 8, 2023, when crowds of supporters of former President Jair Bolsonaro calling for a coup ransacked the Supreme Court, Congress, and the presidential palace in Brasilia.

That violence was stoked on social media.

Justice de Moraes has ordered social media platforms to suspend accounts that posted content that he considered violated the law, but he also ordered the decisions to be confidential. In April, a US congressional committee subpoenaed X and then published dozens of sealed court orders, showing Justice de Moraes had ordered the suspension of about 150 user profiles in recent years. It is unknown how many orders he issued to other platforms.

In addition, in the cases that have come to light, instead of removal of individual posts, Justice de Moraes has ordered the indefinite suspension of accounts, without any guidance as to what the affected account owners can do to have them reinstated.

Musk created an untenable situation

Justice de Moraes has stepped in in part because X has failed to effectively moderate content and enforce its policies. After Elon Musk took over X in October 2022, he fired nearly all staff responsible for content moderation and public policy in Brazil. X, which was once a leader in transparency reporting, has only issued one report in October, for the first half of 2024, on removal requests and compliance rates worldwide since Musk took control of X. By contrast, Twitter had published transparency reports every six months from 2012-2022.

More broadly, Human Rights Watch has written to X as part of our research on its policies on content moderation, but the company has not responded since Musk took over. If Musk truly cared for the rights of users, he would improve X’s approach to content moderation worldwide, so that the human rights of all users everywhere are respected in accordance with international human rights laws.

Data portability, interoperability, and transparency are necessary solutions

The impact of the Brazilian Supreme Court’s decision also highlights a broader regulatory gap when it comes to social media platforms. Because they currently act as closed networks, they are subject to the whims of their leadership. A key way for governments and platforms to mitigate the risks users face due to their dependence on specific platforms would be to require and enable data portability and interoperability, which would allow users to take their posts, followers, and other data to another platform or allow them to communicate between social media platforms, if they choose to, as they do between telephone networks and email providers.

Meanwhile, Brazil’s Supreme Court should increase transparency around its decisions. It should consider more proportionate technical options to force the removal of posts that violate the law that are short of ordering the shutdown of a whole platform.

The authorities in Brazil, and around the world, should heed the recommendation from the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and “refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression,” as he said in a 2018 report to the UN Human Rights Council.

A wake-up call

At the end, X suspended the accounts in question, appointed a legal representative in Brazil, and paid hefty fines. Brazilian media reported that Musk appears to have backed down due to the impact of Justice de Moraes´ decisions on Starlink, an internet provider wholly owned by SpaceX, a company in which Musk has a majority stake and voting rights. Justice de Moraes froze Starlink's Brazilian accounts for more than two weeks and made it responsible for fines imposed on X.

This case should be a wake-up call on the need to center users' rights both in regulation and policy. Whether rights are protected should not depend on the whims of authorities and corporations.