Case Summary and Outcome

The Federal Supreme Court (STF) of Brazil suspended the operations of the social network X (formerly Twitter) in the country due to non-compliance with its judicial orders, emphasizing the importance of sovereignty, democracy, and adherence to Brazilian laws. The Court reinforced that all companies and entities, domestic or foreign, are required to respect Brazilian laws and judicial decisions, adding that freedom of expression is not absolute and can be limited when necessary to protect democracy and public safety. The STF ruled that X must fulfill all rulings, pay fines amounting to nearly 30 million reais, and appoint a legal representative before resuming activities. Following this decision, X complied with the orders of the Brazilian Supreme Court by blocking user accounts associated with illegal activities and appointing a legal representative in Brazil. A subsequent ruling from the STF made it explicit that X must still settle unpaid fines before regaining operational status in Brazil which it did on October 9, 2024.

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Facts

On August 7, 2024, the Brazilian Federal Supreme Court (STF) ordered Twitter Inc. (which operates the social network X) to block accounts of users who exposed personal data, photographs, threats, and coercion against police officers, delegates, and their families following an attempted coup in Brazil on January 8. The Court also ordered the blocking of any ongoing monetization related to these profiles and imposed a daily fine of R$50,000.00 (approximately US$10,000), along with a directive for the company to provide information about the profiles that shared unlawful content. The STF’s order was based on investigations conducted by the Federal Police.

Despite multiple judicial summons and court orders, the company did not comply with the Court’s ruling, leading Elon Musk, CEO of X, to publicly state on August 17, 2024, that he would not continue X Brazil’s operations: “Due to demands by ‘Justice’ @Alexandre [de Moraes] in Brazil that would require us to break (in secret) Brazilian, Argentinian, American and international law, 𝕏 has no choice but to close our local operations in Brazil. He is an utter disgrace to justice”. This position was confirmed by the platform through its “Global Government Affairs” X profile in a post that stated “[…] Despite our numerous appeals to the Supreme Court not being heard, the Brazilian public not being informed about these orders and our Brazilian staff having no responsibility or control over whether content is blocked on our platform, Moraes has chosen to threaten our staff in Brazil rather than respect the law or due process. As a result, to protect the safety of our staff, we have made the decision to close our operation in Brazil, effective immediately […]”.

On August 18, 2024, due to continued non-compliance with court rulings and the platform’s withdrawal from Brazil without appointing a legal representative, the Court froze the bank accounts and assets of the Twitter/X Group, extending the freeze to Starlink, another company controlled by Elon Musk, on August 24, 2024 due to insufficient assets to cover the fines. By that time, fines for non-compliance with court orders had surpassed 18 million reais (approximately US$3.6 million at the time).

On August 28, 2024 an unprecedented judicial notification was issued directly by the Court to Elon Musk in response to the post from X’s Global Government Affairs account. The Court used its own X’s profile to demand Musk appoint a new legal representative within 24 hours, under the penalty of suspending the platform’s operations in the country.

Musk and X were notified of all court rulings through every available means, including using X itself, but neither Musk nor the company chose to make any representation to the Court by that time.

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Decision Overview

On August 30, 2024, Justice Alexandre de Moraes delivered the decision to suspend the X platform in Brazil, with the other Justices of the First Panel of the Federal Supreme Court—Cármen Lúcia, Flávio Dino, and Cristiano Zanin—joining him on September 3.

The central issue for the Court was whether the actions of X, particularly its non-compliance with judicial orders and attempts to evade Brazilian legal jurisdiction, posed a threat to democratic processes and public order significant enough to justify the suspension of the application in the country.

Justice de Moraes noted that the activities conducted on the internet in Brazil are regulated by Law 12.965/14 (“Brazilian Civil Rights Framework for the Internet” or “Marco Civil da Internet”) and are guided by principles such as free enterprise, consumer protection, social purpose of the network, freedom of expression and communication, personal data protection, among others (principles from Articles 2º and 3º of this Law), as well as respect for human rights (Article 7º, XIII). [pp. 7-8] Citing Article 19 of the Law, the Judge added that “[t]he Brazilian Civil Rights Framework for the Internet establishes the civil liability of the internet application provider for damages arising from content generated by third parties and identified as infringing, if the measures determined by judicial order are not executed within the stipulated time frame and within the technical limits of the service.” (in bold in the original) [pp. 8-9] Justice de Moraes also noted that Article 11 of the Law authorizes the “request for information about telematic services directly from Brazilian companies that are subsidiaries of foreign companies when established under Brazilian law and headquartered in Brazil, since, under Brazilian legislation, all companies operating in the national territory must strictly adhere to the Brazilian legal framework.” [pp. 9-10]

Quoting Article 997, VI, of the Brazilian Civil Code, Justice de Moraes explained that every company in Brazil must nominate a representative or administrator, “because the administrators are jointly liable to the company and to third parties harmed, for fault in the performance of their duties (Civil Code, Article 1016), since the company acquires rights, assumes obligations, and acts judicially through administrators (Civil Code, Article 1022).” [p. 10] He noted that Articles 1137 and 1138 of the Civil Code require that foreign companies have a representative to ensure they follow the same rules as local companies. Thus, even in the case of a foreign company, he emphasized that “to be able to operate legally in Brazil, it requires prior authorization from the federal government, according to Article 11, § 2º of the Law of Introduction to the Norms of Brazilian Law (‘[…] they may not, however, have in Brazil: branches, agencies, or establishments, before their constitutive acts are approved by the Brazilian Government, being subject to Brazilian law’)” (italics in the original). [p. 10] Justice de Moraes explained that Articles 86 and 171, § 1º of Law 9.472, of July 16, 1997, which regulates telecommunications services, require that any company providing telecommunications services using satellites, regardless of whether access occurs from national or foreign territory, must be constituted according to Brazilian laws. Referring to the Budapest Convention, the Judge added that although Brazil has only recently acceded, “Brazilian law will be applied as long as there is a service offered in Brazil.” [p. 13] Accordingly, Justice de Moraes found that Brazilian law requires that “companies managing internet services in Brazil must have their headquarters in national territory, as well as comply with court orders determining the removal of unlawful content generated by third parties, according to the provisions previously mentioned, under the risk of personal liability.” [p. 13]

In the case of “X Brasil”, Justice de Moraes noted that the announcement made on August 17, 2024, stating that it would cease operations in Brazil represents an unlawful purpose that was “confessed in the very message posted on social media, namely: TO CONTINUE DISREGARDING ORDERS FROM THE BRAZILIAN JUDICIARY, ESPECIALLY THIS SUPREME COURT,” and that “[t]his is not the first time this has happened, as on other occasions, the largest shareholder of TWITTER INTERNATIONAL UNLIMITED COMPANY, ELON MUSK, demonstrated his total disrespect for Brazilian Sovereignty and, especially, for the Judiciary, positioning himself as a true supranational entity and immune to the laws of each Country” (in uppercase and bold in the original). [p. 16]

Justice de Moraes recalled the case of Inq. 4874, when, on April 7, 2024, the Court ordered that Musk be included among the suspects investigated in the so-called “Digital Militias Inquiry”, which investigates suspected criminal activities of groups spreading fake news on social media to influence political processes. Referring to the case, he noted that “[o]n April 6, 2024, the foreign and majority shareholder of the social network provider X – formerly Twitter – ELON MUSK, initiated a disinformation campaign regarding the actions of the SUPREME COURT and the SUPERIOR ELECTORAL COURT, which was reinforced on April 7, 2024, inciting disobedience and obstruction of Justice, including regarding criminal organizations […] further declaring that the platform would cease complying with orders issued by the Brazilian Judiciary related to the blocking of criminal profiles and those spreading fraudulent news, under investigation by this SUPREME COURT.” (in uppercase in the original) [pp. 16-17]

Citing the decision delivered in the case Pet 10792 AgR, of which he was the Rapporteur, Justice de Moraes added: “Unfortunately, the unlawful conduct was reiterated in the present investigation, making it evident that X BRASIL has failed to comply with various court orders, as well as the fraudulent intention to evade responsibility for complying with the court orders issued, with the disappearance of its legal representatives in Brazil for the purpose of summons and, subsequently, with the aforementioned message about the possible closure of the Brazilian company, COINCIDENTALLY, ONE DAY AFTER THE FIRST PANEL OF THE SUPREME COURT UNANIMOUSLY DENIED THE APPEAL OF X-BRASIL IN A SITUATION ABSOLUTELY IDENTICAL TO THAT OF THE PRESENT INVESTIGATION” (in uppercase and bold in the original). [p. 17-18]

After Justice de Moraes set out the case’s procedural history to demonstrate the seriousness of non-compliance with several Court rulings he found that “[t]he illegality is even more severe, as even when duly summoned to comply with orders to block profiles whose posts reproduce criminal content under investigation in the case files, the platform engaged in judicial disobedience and criminally decided to release a message inciting hatred against this SUPREME COURT […]”. [pp. 18-22] He stated that Musk “confuses FREEDOM OF EXPRESSION with a nonexistent FREEDOM OF AGGRESSION, deliberately conflates CENSORSHIP with CONSTITUTIONAL PROHIBITION ON HATE SPEECH AND INCITEMENT TO ANTIDEMOCRATIC ACTS, ignoring the teachings of one of the greatest liberals in defense of freedom of expression in history, JOHN STUART MILL” (in uppercase and bold in the original). [p. 23] Citing the philosopher Mill, as well as Justices Holmes and Brandeis of the U.S. Supreme Court, Justice de Moraes added that although the precursors of the free market of ideas theory were against restricting the circulation of ideas, they emphasized, “from a utilitarian perspective, the exceptional possibility of restricting this right in cases that cause unjust harm […]”. [p. 23] Referring to other thinkers, such as Lafer, Berlin, Shapiro, and Sabine, de Moraes noted that even among classical liberals, and in respect to the principle of harm, freedom can be relativized in exceptional cases, such as “hate speech, Nazi acts, misogyny, racism, incitement to violence, to antidemocratic acts, coups d’état”. [p. 24] He referred to Justice Holmes’s opinion in the famous American case of Schenck v. United States (249 U.S. 47, 1919 which allows the restriction of freedom of expression in cases of “clear and present danger.” [pp. 24-25]

To characterize the seriousness of X’s conduct, Justice de Moraes mentioned that the company is also “under investigation by the European Union for failing to prevent hate speech and misinformation from being disseminated.” (in bold in the original) [p. 27] Moreover, he noted that, due to the unlawful conduct of various social networks, primarily X, the European Parliament approved two laws, the Digital Services Act (DSA) and the Digital Markets Act (DMA), to “ensure a safer, fairer, and more transparent digital environment.” [pp. 27-28] He also cited an ongoing investigation in Australia, where X “had not cooperated with the competent authorities in the investigation of child abuse practices.” [p. 28]

Justice de Moraes set out instances which demonstrated X’s disregard for Brazilian law and how this conduct represented a serious attack on democratic institutions, elections, and the rule of law” that X’s conduct under Brazilian law and in relation to the Supreme Court represented a serious attack on democratic institutions, elections, and the rule of law, in the following terms:

“The attempt by TWITTER INTERNATIONAL UNLIMITED COMPANY, now REDE X, to place itself outside Brazilian jurisdiction, with the dissolution of the national company, will amplify the massive dissemination of unlawful messages, INCLUDING DURING THE 2024 ELECTION PERIOD, resulting in a heavy load of misinformation for the Brazilian electorate, characterizing various electoral offenses and enabling GRAVE ATTACKS ON DEMOCRACY. 

“The conduct of the international majority shareholder of TWITTER INTERNATIONAL UNLIMITED COMPANY, to terminate the activities of X BRASIL, with the declared and criminal intent to cease compliance with Brazilian court orders, positioning itself in a state of OUTSIDE THE LAW, as if social networks were a NO MAN’S LAND, a true LAWLESS LAND, poses a serious risk to the upcoming municipal elections in October, as it demonstrates by ELON MUSK, with the collaboration of legal representatives in Brazil, an intention to reiterate their conduct of allowing the massive dissemination of misinformation, hate speech, and attacks on the Democratic Rule of Law, violating the free choice of the electorate by distancing voters from real and accurate information.  

“The attempt by TWITTER INTERNATIONAL UNLIMITED COMPANY to operate outside Brazilian law, on the eve of the 2024 municipal elections, clearly demonstrates its intent to maintain and allow the instrumentalization of social networks, with the massive dissemination of misinformation and the potential for the harmful and unlawful use of technology and artificial intelligence to clandestinely direct the will of the electorate, putting Democracy at risk, as has been attempted in Brazil before and in several countries worldwide by the new extremist digital populism.” (in bold and uppercase in the original) [pp. 29-31]

Justice de Moraes acknowledged that the realization of democracy depends on factors such as legitimacy, honesty, efficiency, transparency, and the freedom of voters to choose candidates and pointed out that free choice presupposes that “the conditions under which each citizen will form their convictions for choice must be sound, equitable, and free from artifices and spurious interference, whether through the abuse of economic or political power, or through the illicit use of various media, including digital platforms, to produce massive disinformation, with the dissemination of fraudulent news and anti-democratic hate speech.” [p. 30] Citing the book “A máquina do ódio”, written by journalist Patrícia Campos Mello, he emphasized that “the spread of fake news is much faster than that of true news,” [p. 30] and that this “new reality” demands that constitutional principles such as sovereignty, citizenship, political pluralism, and others provided in articles 1, 2, and 3 of the Federal Constitution, be “respected by all national or foreign companies operating in national territory” (in bold in the original). [p. 32]

Accordingly, given the “repeated, conscious, and voluntary non-compliance with court orders and the failure to pay daily fines imposed, in addition to the attempt to evade Brazilian legal and judicial authority to establish an environment of total impunity and a ‘lawless land’ in Brazilian social networks, including during the 2024 municipal elections” and the risk “consistent with the maintenance and expansion of the instrumentalization of X BRASIL, through the actions of extremist groups and digital militias on social networks, with the massive dissemination of Nazi, racist, fascist, hate speech, and antidemocratic messages, including in the period leading up to the 2024 municipal elections,” Justice de Moraes ordered the suspension of X in Brazil until it fulfills all obligations determined by the Court. He also ordered companies like Apple and Google to implement “technological obstacles capable of making the use of the ‘X’ application unfeasible,” as well as to remove it from their virtual stores. Justice de Moraes further ordered that applications allowing the use of virtual private networks (VPNs) and internet service providers implement obstacles to the use of the application. Finally, he imposed a daily fine of R$ 50,000 (approximately US$10,000) on anyone using X in Brazil.

In her opinion, Justice Cármen Lúcia noted that “the central issue is whether a foreign company or a foreign businessman, offering a service in Brazil, could operate ‘in a legal or even anti-legal bubble,’ forcing a loophole in the Democratic State of Law (caput of art. 1 of the Brazilian Constitution) and disregarding the country’s laws, which apply to all who inhabit this sovereign space (inc. I of art. 1), ignoring the Judiciary, which is expressly tasked with ‘upholding the Constitution’.” She cited art. 170 of the Federal Constitution which states that “[t]he economic order, based on the valorization of human labor and free enterprise, aims to ensure a dignified existence for all, in accordance with the dictates of social justice, observing the following principles: I – national sovereignty” in examining whether Brazil’s sovereignty applied only to Brazilians. Justice Cármen Lúcia asked whether there would “be sovereignty of a people when, within the national space, it is impossible to guarantee Brazilian law, including the one enshrined in the Brazilian Constitution? Could a Brazilian act in any other sovereign state while disregarding and disobeying its legal order and the judicial orders issued by its respective judges?”. Given the repeated violations of Brazilian law and judicial decisions, Justice Cármen Lúcia deemed the measure adopted by the Rapporteur, Justice de Moraes, to be “serious, grave, and necessary,” stating “[d]emocracy demands responsibility and legal, social, political, and economic commitment from all natural and legal persons, national and non-national. And responsibility must be exercised according to the law established by the prevailing constitutionalism in the country.” She added that “[i]t is not through bravado that the Democratic State of Law is built, but through laws that are respected for the liberation of individuals and nations.” In full support of Justice de Moraes’ opinion, Justice Cármen Lúcia clarified that, in this case, “[n]o company was banned in Brazil in the decision under review, no one was excluded from any service that is legitimately provided and used,” but only that “the law was enforced for the benefit of all people, by all natural or legal persons, national and non-national.” 

Justice Flávio Dino also grounded his opinion on the principle of sovereignty, as outlined in articles 1, I, and 170, I of the Federal Constitution, adding, “the national legal order cannot be ignored or trampled by any other ‘normative source,’ no matter how powerful it imagines or desires itself to be. The normative framework of our Nation excludes any foreign imposition, and it is the Courts of Brazil, with the Federal Supreme Court at the top, that establish the interpretation of the laws in force here” (in bold in the original). Further citing articles 2º and 5º, XXXV, of the Constitution, Justice Dino emphasized that judges exercise a power derived from the Constitution that must be carried out with independence, and no one has the right to obstruct justice or fail to comply with judicial decisions, explaining that “economic power and the size of a bank account do not create an absurd immunity from jurisdiction” (in bold in the original). With reference to the constitutional articles that establish various dimensions of freedom (art. 5º, IV, V, IX, X), Justice Dino noted that “there is no freedom without regulation, for regulation prevents the death of freedom. If everyone could do what they wanted, however they wanted, there would be no institutions like the home, the family, the Church, or the State. It would be impossible to have the flow of vehicles in the streets and ideas in public spaces” (in bold in the original). He also referenced articles 221, IV, and 222, §3º, of the Constitution, highlighting that social communication media must be regulated and must observe “the ethical and social values of the person and the family.” Speaking specifically about X, he asserted that “a company that carries out or protects aggressions, repeatedly refuses to comply with judicial orders, deliberately evades its legal responsibilities, and disregards the ETHICS inherent to healthy coexistence between people and their families, invites the activation of a legitimate regime of restrictions and sanctions.” 

Justice Cristiano Zanin also followed Justice de Moraes’s opinion, stating that “the repeated non-compliance with decisions of the Federal Supreme Court is extremely serious for any citizen or public or private legal entity” and that “no one can seek to conduct their activities in Brazil without adhering to the laws and the Federal Constitution.” 

In the final decision, the Court ordered the “(1) THE IMMEDIATE, COMPLETE, AND FULL SUSPENSION OF THE OPERATIONS OF “X BRASIL INTERNET LTDA” (capitals in the original) in Brazil until all the existing court orders were complied with, including the payment of the daily fines and a representative is appointed, and that the President of the National Telecommunications Agency be notified to take all measures necessary for compliance with the order within 24 hours. 

The Court also ordered that third party technology companies take action to ensure compliance with the order, within 5 days. This included an order that Apple and Google “implement technological barriers capable of preventing the use of the ‘X’ application by users of the iOS (APPLE) and ANDROID (GOOGLE) systems” and to remove X from their app stores, that that applications that use VPNs (virtual private networks) and internet service providers “insert technological barriers capable of preventing the use of the “X” application”. 

The Court imposed a daily fine of R$ 50,000.00 (approximately US$9,000) on “individuals and legal entities that engage in conduct aimed at using technological subterfuges to continue communications occurring via ‘X’”. 

Hours after the judgment was issued, the Court suspended the order related to third parties due to its provisional nature, aiming to prevent “unnecessary and reversible inconveniences to third parties” and to allow X Brasil or Elon Musk to make a representation.

On September 18, the Court issued another ruling in response to reports that the X platform was being made available in Brazil through other servers, such as CND, CLOUDFLARE, and FASTLY. The Court referenced a news article reporting a provocative post from Musk that stated, “[a]ny sufficiently advanced magic is indistinguishable from technology,” and concluded that “[t]here is, therefore, no doubt that the X platform – under the direct command of ELON MUSK – intends once again to disrespect the Brazilian Judiciary, as ANATEL [National Telecommunications Agency] identified the strategy used to disobey the judicial order issued in these proceedings, including suggestions for measures to be taken to maintain the suspension.” [p. 2] The Court ordered the ongoing suspension of X, including in relation to the other servers, and imposed new fines, this time a daily fine of R$ 5 million (approximately US$920,000).

Although this lawsuit is confidential, the STF has been disclosing the rulings that are issued. In an update on the case, in a decision delivered on September 27, 2024, the Court concluded that, on September 18, 2024,  X complied with its orders that required the blocking of accounts of users who engaged in illegal activities and indicated a representative in Brazil. However, the Court highlighted that for the company to resume its activities in the country, it was still necessary to pay all fines resulting from previous non-compliance (approximately R$18 million is blocked but has not yet been used to pay the debt, with over R$10 million still due).

In another development of the case, in a ruling delivered on October 1, 2024, the Court referenced the representation that the platform X made, stating that it would pay all fines after the unblocking of its accounts. 

On October 9, 2024, the STF authorized X to resume operations in Brazil after the platform paid the fines, totaling BRL 28,600,000 (approximately USD 5.6 million), as required.

NOTE: There are no page numbers available for the minority judgments as we currently only have provisional versions. We will update the analysis with page numbers when they become available.

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