Case Summary and Outcome

The Federal Supreme Court (STF) of Brazil ordered that Elon Musk, CEO of the social network X (formerly Twitter), be included as a suspect in a criminal inquiry into online propaganda. Musk had posted on X accusing a Supreme Court Justice of censoring freedom of expression and violating Brazilian law and stating that X would not abide by judgments issued by the Supreme Court against it. The Court found that Musk had used X to conduct a disinformation campaign about the Brazilian Supreme Court and Superior Electoral Court, exacerbating the risks to the security of the judiciary, and had contributed to the criminal action being investigated by the Supreme Court in various cases. The Court also ordered that X refrain from disobeying the judicial orders it had already issued.

Facts

On April 6, 2024, Elon Musk, CEO of the social network “X”, formerly known as “Twitter”, responded to a post by Justice of the Federal Supreme Court of Brazil (STF), Alexandre de Moraes, asking: “[w]hy are you demanding so much censorship in Brazil?”. The post in question, dated January 11, 2024, had no relation to the topic raised by Musk; it was a message in which Moraes congratulated a former Supreme Court Justice who had been appointed as Minister of Justice.

On the same day, Musk also shared a post by American journalist Michael Shellenberger criticizing de Moraes, commenting, “[t]his aggressive censorship seems to violate the law & will of the people of Brazil”. In response to a follower’s comment, Musk added, “[w]e are lifting all restrictions. This judge has applied massive fines, threatened to arrest our employees, and cut off access to X in Brazil. As a result, we will probably lose all revenue in Brazil and have to shut down our office there. But principles matter more than profit”. In the same post, he said “[s]omeone save Brazil!”.

On the following day, April 7, Musk posted that soon “X will publish everything demanded by @Alexandre [de Moraes] and how those requests violate Brazilian law”. He said that “[t]his judge has brazenly and repeatedly betrayed the constitution and the people of Brazil. He should resign or be impeached”.

Hours later, Justice Alexandre de Moraes ordered that Musk be included among the suspects investigated in the so-called “Digital Militias Inquiry” (Inq. 4.874), which investigates suspected criminal activities of groups spreading fake news on social media to influence political processes.

Decision Overview

Justice Alexandre de Moraes delivered the STF’s decision. The central issue for the Court was whether Musk had engaged in illegal conduct by questioning the institutions of the Brazilian Republic and declaring his refusal to comply with judicial orders in his X posts.

Musk made no representations to the Court.

The Court noted that activities conducted on the internet in Brazil are regulated by Law 12.965/14 (“Marco Civil da Internet”) and are subject to judicial review in terms of article 5, XXXV, of the Constitution. Law 12.965/14 includes cases of breach of data or communication confidentiality (Art. 7, II and III, and Art. 10), the removal of illegal content generated by third parties (Arts. 19 and 20) and obtaining evidence in judicial proceedings (Art. 22). The Court emphasized that Brazilian law requires companies providing internet services to “comply with all court orders and decisions, including those that mandate the provision of personal data or other information that can help identify the user or device, as well as those that order the cessation of illegal activities, including the blocking of profiles”. [p. 1] In capital letters, it added: “SOCIAL NETWORKS ARE NOT LAWLESS LANDS! SOCIAL NETWORKS ARE NOT NO MAN’S LAND!”. [p. 2]

Asserting that social network providers and private messaging services “must absolutely respect the Federal Constitution, the Law, and Brazilian Jurisdiction”, the Court stated that “the dignity of the human person, the protection of the lives of children and adolescents, and the maintenance of the Democratic Rule of Law are above the financial interests of social network providers and private messaging services”. [p. 2]

Quoting a decision delivered in Inq. 4.781/DF (the “Fake News Inquiry“), the Court found that “the real, evident, and dangerous CRIMINAL INSTRUMENTALIZATION of social network providers and private messaging services for the broadest practice of criminal activities on social networks, including actions against the Brazilian democratic regime, could lead to civil and administrative liability for the companies, as well as criminal liability for their administrators for inciting and participating in the investigated conduct”. [p. 2]

The Court explained that criminal actions allegedly committed by social network providers and private messaging services are also under investigation in inquiries 4.920, 4.921, 4.922, and 4.923, which respectively investigate financiers, instigators, authors, perpetrators, and authorities allegedly involved in the attempted coup on January 8, 2023. On January 8, 2023, a crowd of supporters of former President Bolsonaro invaded the Praça dos Três Poderes in Brasília, the capital of Brazil, and vandalized the buildings of the National Congress, the Federal Supreme Court, and the Palácio do Planalto (Presidential office). The Court noted that in Inq. 4.923 and PET 12.100 the Police uncovered activities that were allegedly an “attempted coup d’état and violent abolition of the Democratic Rule of Law” aimed at spreading the narrative of electoral fraud in the presidential elections, “to enable and potentially legitimize intervention by the Armed Forces, with violent abolition of the Democratic Rule of Law, in a dynamic resembling a true digital militia”. [p. 3]

In this context, the Court found it “unacceptable that any representatives of social network providers and private messaging services, especially the former Twitter now ‘X’, are unaware of the CRIMINAL INSTRUMENTALIZATION being carried out by so-called digital militias in the dissemination, propagation, organization, and amplification of numerous illicit practices on social networks, particularly in the grave assault on the Democratic Rule of Law and the attempted destruction of the SUPREME FEDERAL COURT, National Congress, and Palácio do Planalto, in other words, of the Brazilian Republic itself”. [p. 3] The Court added that after the January 8 invasions, the issue was discussed in a meeting chaired by him, at the time the President of the Superior Electoral Court (TSE), in the presence of major providers, including X and they discussed “the real danger of this CRIMINAL INSTRUMENTALIZATION – and its use for the crimes committed – by social network providers and private messaging services, and the need to establish a working group to propose self-regulation and legislative regulation, aiming to prevent, in constitutional and legal terms, the persistence of repeated illicit behaviors on various platforms through incitement to crime, discriminatory content, hate speech, speech undermining the Judiciary, and actions against the fairness of elections and the Rule of Law”. [p. 4]

The Court explained that throughout the year 2023 many other meetings were held between the TSE and internet service providers, including X, which led to the establishment of a Working Group under TSE Ordinance 173/2023. It added that, in 2024, social network providers and private messaging services were also invited to collaborate with the CIEDDE (Integrated Center for Combating Disinformation and Defending Democracy), with their legal representatives, including those from the X, participating in various meetings with the Secretary General and Director General of the TSE. [p. 4]

The Court stated that, until then, there were indications of criminal conduct by the social network providers and private messaging services themselves, “for the commission of numerous and very serious criminal offenses”, although intentional conduct was not yet clear but that this changed with Musk’s posts. [pp. 4-5]

Referring specifically to Musk, the Court said that starting on April 6, 2024, “the owner and CEO (Chief Executive Officer) of the social network provider ‘X’ – formerly ‘Twitter’ – […] began a disinformation campaign about the actions of the SUPREME FEDERAL COURT and the SUPERIOR ELECTORAL COURT”. It added that this campaign was continued the following day when Musk allegedly instigated “disobedience and obstruction of justice, including in relation to criminal organizations […] further declaring that the platform will terminate compliance with orders issued by Brazilian courts related to the blocking of criminal profiles spreading fraudulent news, under investigation in this SUPREME COURT”. [pp. 4-5]

The Court concluded that there were indications that X employed illegal mechanisms, and that Musk intentionally contributed to the “criminal instrumentalization” being investigated across various inquiries. It found that there were indications that X’s conduct may represent “not only abuse of economic power, by illegally attempting to impact public opinion, but also blatant inducement and instigation to maintain various criminal activities practiced by the digital militias investigated in Inquiry 4874, exacerbating the risks to the security of the members of the SUPREME FEDERAL COURT … and of the Democratic Rule of Law itself; in addition to obstruction of justice in criminal organizations investigated in Inquiries 4923, 4933, and PET 12100, and a clear attack on the Brazilian Judiciary.” [p. 5]

Accordingly, the Court ordered the inclusion of Musk as a suspect in Inq. 4.874 for the alleged intentional criminal instrumentalization of X, in connection with the facts investigated in Inq. 4.781, 4.923, 4.933, and PET 12.100. Additionally, it ordered the initiation of another inquiry to investigate Musk’s conduct regarding crimes of obstruction of justice, including in criminal organization (Art. 359 of the Penal Code and Art. 2, §1º of Law 12.850/13), and incitement to crime (Art. 286 of the Penal Code). It also ordered X to refrain from disobeying judicial orders already issued, including any reactivation of profiles whose blocking was ordered by the STF or TSE, under penalty of a daily fine of R$ 100,000.00 (approximately US$17,700 in July 2024) per profile, and legal responsibility for disobedience to the judicial order by the company’s legal representatives in Brazil. [p. 6]

The inquiry was recently extended for another 180 days and is still ongoing as of August 2024.