Brazil Forces Musk to Heel

Elon Musk has capitulated to Brazilian authorities. His social media provider, X, will now comply with the court decisions that have arbitrarily blocked access to social media accounts in Brazil.[1] The measure would ensure X is back and operating in the country after paying heavy fines imposed by a judge entirely sympathetic with the censorship goals of hard left president Lula da Silva, . [2]

The social media provider ceased to operate in Brazil in August after non-compliance with court orders blocking the accounts of numerous political dissidents who, according to Justice Alexandre de Moraes of the Brazilian Supreme Court, were disseminating “extreme” and “anti-democratic” messages.[3] As John O’Sullivan writes in October’s Quadrant, Brazil is at the fore of a global movement by governments of all stripes to curtail what can be said, seen and heard. Musk has now agreed to block those social media accounts. Lawyers who are leading X’s defence in the Supreme Court report that Musk’s legal team in the United States convinced him that, in order to return to Brazil, he had no choice but to comply with all the Moraes’ decisions.[4]  “This will still be clarified to Justice Moraes,” criminal lawyer Sérgio Rosenthal told BBC News Brasil.[5]  Initially, the important thing is to regularise the company’s situation in Brazil.”[6]

In a court order issued on September 1,  Moraes gave X a new deadline to send more data before the site returns to Brazil. He also determined that several federal agencies, such as the Federal Revenue Service, the Central Bank, the Federal Police, Anatel (National Telecommunications Agency) and the Judicial Secretariat of the Supreme Court itself, consult amongst themselves and report back to him.[7] The instruction is for these agencies to clarify “the current situation of the legal representation of X in Brazil”, and make calculations of “any fine to be applied.”[8] Justice Moraes has already fined the platform $5 million Brazilian dollars (reals) which is $AU1,33 million in Australian currency per day for what he describes as “wilful, illicit and persistent recalcitrance” in disobeying the court orders.[9]

The social media giant was taken offline on August 30, two days after Moraes subpoenaed Musk to appoint a legal representative in Brazil within 24 hours.  The platform had closed its office in the country in reaction to Moraes’ order to block the accounts of seven of da Lula’s political political critics and dissidents, ordering the National Telecommunications Agency (Anatel) to block access to the network. Musk himself was to be personally investigated as part of a court-ordered probe since 2020 of what Moraes calls members of  “digital militias”. The focus would be on whether Musk to determine whether the businessman is guilty of “obstruction of justice, criminal organization and incitement to crime.” According to Moraes, Musk has engaged in a “disinformation campaign” instigating “disobedience and obstruction of justice”.[10]

Among the targets of these investigations is former President Jair Bolsonaro, amongst them democratically elected Congresswoman Carla Zambelli, ex-congressman Roberto Jefferson and businessman Luciano Hang.[11] “Social networks are not a lawless land,” Moraes says. [12]

In the decision that initially led to the suspension of X, Justice Moraes argues that Musk and X were encouraging “extremist” and “anti-democratic speech”. In addition, Musk would be obstructing justice by not yielding to judicial edicts, such as blocking accounts, and failing to appoint a legal representative in the country. Daily fines of $AU26,850 for each unblocked profile, as ordered by the Supreme Court. Shortly after the ruling, Musk called Justice Moraes a “brutal dictator” and said that he has President Lula “on a leash”. He also said that “freedom of expression is the foundation of democracy and an unelected pseudo-judge in Brazil is destroying it for political purposes.”[13] On X, Musk expanded his criticism, writing how “the decision to close Office X in Brazil was difficult, but if we had agreed to the demands for secret (illegal) censorship … there would have been no way to explain our actions without being embarrassed.”[14]

Rebecca Weisser: The Road to Brazil

After those brave and resolute words the social media platform then unexpectedly returned to work in Brazil on September 18, after “a technical change” that would have “circumvented” the blocks imposed on telephone and internet in Brazil. In a statement, X claimed that what what amounts to brave words as the overture to capitulation had been involuntary. “We continue efforts to work with the Brazilian government so that it returns as soon as possible to the Brazilian people,” the platform said.[15]

For Justice Moraes, however, a post by Musk on his social network would establish, at least to his satisfaction, that the non-compliance with the block was deliberate. “The wilful, illicit and persistent recalcitrance of platform X in compliance with court orders was confessed directly by its largest shareholder, Elon Musk, in a publication in X itself addressed to the entire national territory, as reported by the press,” he wrote.

Justice Moraes then determined that the National Telecommunications Agency should take immediate measures to reinstate the blocking of X and for the social media platform to inform the Court within 24 hours what measures were to comply were being taken.[16]  The agency disputed X’s claim that its short-lived return to Brazil was “inadvertent and temporary”[17],  stating that X’s conduct demonstrated a “deliberate intention to disobey the order of the Court”.

Justice Moraes also determined to fine Starlink, the satellite network Musk operates in Brazil and everywhere else in the world, because X no longer has an office in the country.[18] This was a blatantly and absolutely illegal ruling because these companies provide different services and are not legally associated. In Australian terms it would be as if theHigh Court held accountable the Sydney Morning Herald and Age for alleged violations of the law by Nine’s online dating site RSVP.

As a consequence of this judicial harassment, Musk signaled his capitulated on October 1, when X announced it will be paying all fines imposed by Justice Moraes, and that it will comply in full with the court’s order to cancel the social media accounts of political dissidents, allowing the platform yo resume its activities in the country.[19]

“When X was suspended in Brazil, our infrastructure to provide service to Latin America was no longer accessible to our team. To continue providing excellent service to our users, we have changed servers. This change resulted in an inadvertent and temporary restoration of the service for Brazilian users,” the platform said in reference to the brief re-appearance which so riled Moraes.[20] “We continue efforts to work with the Brazilian government to return it to the people of Brazil very soon.” [21]

During the latest presidential campaign, Moraes was the nation’s top electoral officer.^[22] During his presidency of the Superior Electoral Court (TSE), between August 2022 and June 2024, he made numerous decisions blocking social media users with the justification of curbing the spread of “fake news” and right-wing “extremism”. These rulings were arbitrary, given that there is no law specifically providing for this type of measure.[23]

Worth noting is that one of the topics censored by Moraes is a 2018 Federal Police inquiry into how hackers might have attacked and penetrated the computer system that tallies Brazillians’ votes.^[24] All who question the the country’s electronic voting system must be “treated like criminals,” Moraes has decreed.^[25]

Prior to the 2022 Brazilian presidential election, The New York Times commented that Moraes’ rulings “could have major implications for the winner of the presidential vote”.^[26]  On March 18, 2022, for example, he ordered the nationwide suspension of the Telegram messaging app^[27] which Jair Bolsonaro used extensively to reach his voter base.^[28]

In that ruling, Moraes mentions Telegram’s failure to remove what he deemed “misleading” content from Bolsonaro’s personal page.^[29] Not only did he order the shutdown of the message app nationwide but also ordered Apple and Google to introduce “technological obstacles” to block Telegram on their operating systems and withdraw it from digital stores in Brazil.^[30]

Not done yet, Moraes also ordered the removal of thousands of social media posts supporting Bolsonaro and signed off on the arrests without trial of the former president’s supporters for social media posts allegedly “attacking Brazil’s institutions”.^[31]  In addition to sending these people to jail, he also ordered the confiscation of their electronic devices and the freezing of  personal bank accounts.^[32] As for Bolsonaro, he has since been charged with money laundering and other offences.

On December 14, 2022 in language that must make Australia’s eSafety Commissioner and the Albanese government green with envy, Moraes lamented that “many people still need to be arrested and a lot of fines issued”.^[33] In all this, states The New York Times, “Justice Moraes has acted unilaterally, emboldened by new powers the court granted itself in 2019 that allow it to, in effect, act as an investigator, prosecutor and judge all at once”.^[34]

As can be seen, Elon Musk’s capitulation represents the latest development in the gradual obliteration of democracy and the rule of law in Brazil. This is just the continuation of a long train of abuses. The right-leaning online video platform Rumble had already been banished from the country for not complying with these arbitrary demands. Watch this clip to see why Rumble so annoys the woke establishment.

As a reward for his work silencing da Silva’s critics, on November 21, 2023, the President bestowed on Justice Moraes the Rio Branco Medal of Merit  for “meritorious services” to the Brazilian government.^[35]

Democracy is now dead in Brazil. The country is on the path of becoming just another communist dictatorship.

 

Prof. Augusto Zimmermann PhD, LLM, LLB, CIArb is a former member of the Law Reform Commission in Western Australia and a former associate dean (research) at Murdoch University, School of Law.

 

 

[1] ‘Starlink, de Elon Musk, volta atrás e diz que vai cumprir ordem de bloqueio do X’, Carta Capital, 3 September 2024, at https://www.cartacapital.com.br/cartaexpressa/starlink-de-elon-musk-volta-atras-e-diz-que-vai-cumprir-ordem-de-bloqueio-do-x/

[2] Ibid.

[3] Mariana Schreiber, ‘Moraes dá 5 dias para X provar que tem representante no Brasil e pede dados para calcular multa’, 19 September 2024, BBC News Brasil, at  https://www.bbc.com/portuguese/articles/cwyed1zpxlwo

[4] Caio Junqueira, ‘X decide cumprir decisões de Moraes para voltar a atuar no Brasil, dizem advogados’, CNN Brasil, 19 September 2024, at https://www.cnnbrasil.com.br/blogs/caio-junqueira/politica/x-decide-cumprir-decisoes-de-moraes-para-voltar-a-atuar-no-brasil-dizem-advogados/

[5] Julian Braun, ‘3 fatores que podem estar por trás da decisão de Musk e X de cumprir determinações de Moraes’, BBC News Brasil, 21 September 2024, at https://www.bbc.com/portuguese/articles/c749x0mrjmko

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibide.

[10] Mariana Schreiber, ‘Moraes dá 5 dias para X provar que tem representante no Brasil e pede dados para calcular multa’, 19 September 2024, BBC News Brasil, at  https://www.bbc.com/portuguese/articles/cwyed1zpxlwo

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Julian Braun, ‘3 fatores que podem estar por trás da decisão de Musk e X de cumprir determinações de Moraes’, BBC News Brasil, 21 September 2024, at https://www.bbc.com/portuguese/articles/c749x0mrjmko

[16] Mariana Schreiber, ‘Moraes dá 5 dias para X provar que tem representante no Brasil e pede dados para calcular multa’, 19 September 2024, BBC News Brasil, at  https://www.bbc.com/portuguese/articles/cwyed1zpxlwo

[17] Ibid.

[18] Ibid.

[19] ‘“X” enquadrado, Brasília Capital, 2 October 2024, at https://bsbcapital.com.br/x-enquadrado/

[20] Mariana Schreiber, ‘Moraes dá 5 dias para X provar que tem representante no Brasil e pede dados para calcular multa’, 19 September 2024, BBC News Brasil, at  https://www.bbc.com/portuguese/articles/cwyed1zpxlwo

[21] Ibid.

[22] Alexandre de Moraes, ‘Ministro Alexandre de Moraes toma posse como presidente to TSE’, Agência Brasil, 16 August 2022, at https://agenciabrasil.ebc.com.br/justica/noticia/2022-08/ministro-alexandre-de-moraes-toma-posse-como-presidente-do-tse

[23] Mariana Schreiber, ‘Moraes dá 5 dias para X provar que tem representante no Brasil e pede dados para calcular multa’, 19 September 2024, BBC News Brasil, at  https://www.bbc.com/portuguese/articles/cwyed1zpxlwo

[24] Luana Patriolino, ‘Bolsonaro Volta a Atacar o Judiciario e diz que Fachin foi advogado do MST’, Correio Braziliense, 27 May 2022, at https://www.correiobraziliense.com.br/politica/2022/05/5011215-bolsonaro-volta-a-atacar-o-judiciario-e-diz-que-fachin-foi-advogado-do-mst.html

[25] ‘Electoral high court president says those who doubt election results in Brazil will be treated as criminals’, The Rio Times, 5 November 2022, at https://www.riotimesonline.com/brazil-news/brazil/electoral-high-court-president-says-those-who-doubt-election-results-in-brazil-will-be-treated-as-criminals/

[26] Jack Nicas and André Spigariol, ‘To Defend Democracy, Is Brazil’s Top Court Going Too Far?’, The New York Times, September 26, 2022, at https://www.nytimes.com/2022/09/26/world/americas/bolsonaro-brazil-supreme-court.html

[27] ‘Brazil: Telegram messaging app blocked by top court’, DW, 19 March 2022, at https://www.dw.com/en/brazil-telegram-messaging-app-blocked-by-top-court/a-61183805

[28] Ibid.

[29] ‘Brazil judge bans messaging app Telegram for ignoring ruling’, The Economic Times, 19 March 2022, at https://economictimes.indiatimes.com/news/international/world-news/brazil-judge-bans-messaging-app-telegram-for-ignoring-ruling/articleshow/90325739.cms?from=mdr

[30] Bryan Harris and Michael Pooler, ‘Brazil’s supreme court blocks messaging app Telegram’, Financial Times, 19 March 2022, at https://www.ft.com/content/ff094139-b411-4850-95f7-051e3676736f

[31] Jack Nicas and André Spigariol, ‘To Defend Democracy, Is Brazil’s Top Court Going Too Far?’, The New York Times, 26 September 2022, at https://www.nytimes.com/2022/09/26/world/americas/bolsonaro-brazil-supreme-court.html

[32] ‘Bolsonaro Pardons Silveira One Day After His Conviction’, MercoPress, 22 April 2022, at https://en.mercopress.com/2022/04/22/bolsonaro-pardons-silveira-one-day-after-his-conviction

[33] ‘Alexandre de Moraes diz que ainda “tem muito gente para prender”’, CNN Brasil, 14 December 2022, at https://www.cnnbrasil.com.br/nacional/alexandre-de-moraes-diz-que-ainda-tem-muita-gente-para-prender/

[34] Jack Nicas and André Spigariol, ‘To Defend Democracy, Is Brazil’s Top Court Going Too Far?’, The New York Times, 26 September 2022, at https://www.nytimes.com/2022/09/26/world/americas/bolsonaro-brazil-supreme-court.html

[35] Cristyan Costa, ‘Lula homenageia Moraes no dia do velório de Clezão’, Revista Oeste, 21 November 2023, at https://revistaoeste.com/politica/lula-homenageia-moraes-no-dia-do-velorio-de-clezao/