RIO DE JANEIRO, Brazil — On Friday, Aug. 30, Brazil’s Supreme Court Justice Alexandre de Moraes ordered the nationwide suspension of X (formerly Twitter), adding the country to a list of nations where this social media platform is no longer available. By Saturday (Aug. 31) morning, the app was already showing instability, and the content was not loading as usual — an indication that the order is being enforced by the country’s internet providers.
The decision followed X chairman Elon Musk’s refusal to appoint a legal representative in Brazil and his non-compliance with Moraes’ content moderation orders. On Wednesday, Aug. 28, Moraes summoned Musk (via a controversial post on X) to comply with Brazilian legislation in 24 hours. The businessman responded with sarcasm, posting memes generated by artificial intelligence, and calling the justice a censor and a dictator.
Here’s what you need to know about this case:
Why did the Brazilian Supreme Court summon Elon Musk?
Musk has been under investigation in Brazil since the first week of April. In Inquiry #4957, he is investigated for obstruction of justice, involvement in a criminal organization and incitement to crime. In the so-called Digital Militias Inquiry, connected to the attacks seen in Brasília on Jan. 8, 2022, he is investigated as part of groups suspected of spreading fake news on social media to influence political processes. Brazil is currently in an election year, with more than 5,000 cities across the country set to choose their new mayors in October. The campaign period officially began on Aug. 16..
How did the investigation against Musk begin?
On April 3, Brazil was hit by the leak of internal emails sent from and within X. In those documents, the company criticized decisions made by the Superior Electoral Court (TSE, in Portuguese) in 2022. X appeared to disagree with judicial requests to remove content from the platform and to provide user data to the Superior Electoral Court. At that time, Moraes was the president of that entity and responsible for overseeing the general elections (including the presidential).
Four days after the leak, on April 7, Moraes included Musk in the Digital Militias Inquiry and ordered X to refrain from “disobeying any judicial order already issued” by the Brazilian Judiciary, including reactivating profiles whose blocking had been ordered by the Supreme Court (STF, in Portuguese) or the TSE. It was also determined that, in case of non-compliance, a daily fine of R$ 100,000 (about USD $20,000) per profile would be imposed on the company, and the legal representatives of X in Brazil would be charged with disobedience to a judicial order.
Less than 24 hours later, on April 8, Musk posted on social media that X had lifted all restrictions it had applied based on legal requests, and complained that Moraes had not only imposed heavy fines to the company but also threatened to imprison its staff. Musk mentioned that he might close X’s office in Brazil in response to what he considered Moraes’ excesses and “censorship.” That same day, the judge included Musk in Inquiry #4957.
On Aug. 17, X announced the closure of its office in Brazil, which violates the country’s legislation. To operate in national territory, all social media platforms must have at least a legal representative.
On Aug. 28, Moraes summoned Musk via X, demanding that, within 24 hours, he appoint a new representative for the company in Brazil. Musk flooded his own social media with memes and jokes about the judge—some of them generated by artificial intelligence.
On Aug. 30, almost 48 hours after Musk was summoned, Moraes ordered X’s suspension in the country. The social media platform still did not have a person in Brazil.
On Aug. 31, the platform was no longer available in the country.
Is it valid to summon someone via X in Brazil?
There is no final answer to this question, as it has become a legal controversy in the country. However, most experts consulted by Lupa believe that summoning someone via X is an invalid move.
In a statement, lawyer and professor Andréa Rocha, specialized in public law and coordinator of the International Law Department at the Brazilian Institute of Resources and Processes in Higher Courts (IRTS), stated that there is no legal regulation supporting summons made through social media, especially in criminal proceedings.
She emphasizes that the Brazilian legal system has methods to notify defendants abroad through diplomatic channels. Therefore, in her opinion, methods not provided for by law should only be used after all legal options have been exhausted, which did not seem the case here.
Lawyer Paulo Peixoto, a professor of constitutional law and human rights at Damásio Educacional, also classified the summons via X as atypical and pointed out the possibility that this could lead to the annulment of the entire inquiry.
“Since it involves a foreign company, a letter rogatory should have been issued according to the Code of Criminal Procedure and international treaties. In this sense, there is a possibility of declaring the act null and void,” Peixoto explains.
André Marsiglia, a constitutional lawyer and specialist in freedom of expression, states that the summons “is not valid.” He explains that, legally speaking, the summons must be delivered in person and also points out a problem with the document itself.
“Musk is not the CEO of the company; the recipient of the summons needs to respond legally on its behalf,” he argues. The current CEO of X is Linda Yaccarino.
In an article for the UOL news portal, Wilton Gomes, a master’s and doctoral candidate in State Law at the University of São Paulo, explains that despite the absence of specific federal legislation for summonses via social media, the principle of the instrumentalization of forms can validate the act if it fulfills its purpose without harming the parties.
“The summons of Elon Musk via X, through his personal profile, and moreover, the responses he made, giving a deadline for it to be acknowledged that he indeed ‘received’ the summons, and that it is of his undeniable knowledge, would be sufficient for the validation of the procedural summons, despite not being provided for in federal law and seeming atypical,” Gomes wrote.
According to the Brazilian Supreme Court itself, the summons via X is unprecedented in the country. In a statement, the court highlighted that the platform has no legal representative in Brazil and that the lawyer appointed in the case was also summoned.
Will users still be able to access X by any other means?
No. On Aug. 30, Moraes ordered the suspension of X for failing to comply with the summons sent on Wednesday (Aug. 28) and for not appointing a legal representative in Brazil. The decision mandates that the National Telecommunications Agency (Anatel) and companies such as Apple, Google, internet providers, and phone operators like Claro, Tim, and Oi take measures to block access to the ‘X’ app in Brazil. As a result, users will be unable to access the platform from devices with an IP address in Brazil (Internet Protocol)—a unique address assigned to each device on a network to identify and locate its communication on the internet.
What about VPN (Virtual Private Network)?
In his order, Moraes also prohibited users from adopting alternative technological means, such as using a VPN to disguise the device’s location (as being in another country) and access X. If a user attempts to access the platform via VPN, they will be fined R$ 50,000 (USD $10,000) per day, according to the decision.
For some specialists, like lawyer André Marsiglia, the decision to punish users for using VPN is irregular. “You cannot punish people who are not part of a legal process; you can punish the parties, but not third parties. And in this case, the users are third parties. The VPN tool is not illegal, so there should be no issue,” he explained.
This article, republished here with permission, originally appeared on Lupa, a fact-checking news organization based in Brazil. Lupa is a verified signatory to the International Fact-Checking Network’s Code of Principles.
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