Elon Musk's dispute with Brazilian judge is much more than a personal dispute – it is about national sovereignty, freedom of expression and the rule of law

It's easy to get distracted by the barbs, jabs and din of the ongoing and very public feud between the world's richest man and a fierce judge on Brazil's highest court. Elon Musk, the billionaire owner of X, regularly posts his disdain for Supreme Court Judge Alexandre de Moraes – a man Musk has called a “dictator” and “Brazil's Darth Vader.” He makes these comments on a social media platform that has banned Moraes in Latin America's most populous country as part of a lengthy campaign against disinformation.

But as an expert in Brazilian digital law, I see this as more than just a bitter personal feud. X's legal battle with Brazil's Supreme Court raises important questions about platform regulation and how to combat disinformation while protecting free speech. And while the focus is on Brazil and Musk, it's a debate that reverberates around the world.

Countdown to the big fight

In August 2024, the situation between Musk and Moraes came to a head, but this battle had been brewing for years.

In 2014, Brazil passed the Marco Civil da Internet, or the Internet Bill of Rights as it is commonly called. This bipartisan framework for internet regulation established principles to protect user privacy and free expression, while also imposing penalties on platforms that violate the rules.

It included a system of “judicial notice and takedown” whereby internet platforms would only be held liable for harmful user-generated content if they failed to remove the content after receiving a court order to do so.

The approach should strike a balance between protecting free expression and removing illegal and harmful content. It prevents social media platforms, messaging apps and online forums from being automatically held responsible for users' posts and empowers courts to intervene when necessary.

However, the 2014 law does not provide detailed rules for content moderation and leaves much of the responsibility in the hands of platforms such as Facebook and X.

And the rise of disinformation in recent years, particularly in the context of the 2022 Brazilian presidential election, has exposed the limits of this framework.

The then-president, far-right populist Jair Bolsonaro, and his supporters were accused of using social media like X to spread falsehoods, sow doubts about the integrity of Brazil's electoral system, and incite violence. When Bolsonaro was defeated in the election by leftist Luiz Inácio Lula da Silva, an online campaign of election denial flourished, culminating in the storming of Brazil's Congress, Supreme Court, and presidential palace by Bolsonaro's supporters on January 8, 2023—an event similar to the riots at the U.S. Capitol two years earlier.

The fight becomes personal…

In response to the disinformation campaigns and attacks, Brazil's Supreme Court opened two commissions of inquiry – the Digital Militias Inquiry and the Antidemocratic Acts Inquiry – to investigate the groups involved in the plot.

As part of these investigations, the Supreme Court ordered social media platforms – such as Facebook, Instagram and X – to hand over IP addresses and block accounts linked to these illegal activities.

But by that time, Musk, who describes himself as a free speech fundamentalist, had already taken over the platform and promised to support free speech, restore suspended accounts and significantly relax the platform's content moderation policies.

As a result, Musk has openly defied the Supreme Court's orders from the beginning. In April 2024, X's global government affairs team began informing the public about what it considered to be the Supreme Court's “illegal” demands.

The dispute escalated in late August when X's legal representative in Brazil resigned and Musk refused to appoint a new legal representative – a move that Moraes interpreted as an attempt to circumvent the law. In response, Moraes ordered the platform to be banned on August 31, 2024.

The move came with heavy penalties for Brazilians trying to circumvent the ban. Anyone using virtual private networks, or VPNs, to access X will face daily fines of nearly $9,000 – more than the average annual income of many Brazilians. These decisions were confirmed by a panel of five Supreme Court judges on September 2, 2024. However, given criticism of judicial overreach, the plenary of 11 judges will debate and possibly reconsider this part of Moraes' decision.

… then becomes political

The battle between X and Brazil's Supreme Court has been largely politicized. On September 7, thousands of Bolsonaro supporters took part in a protest “for freedom of expression.” Lula's government and the Supreme Court have been targeted, and the opposition and right-wing groups are portraying the blocking of the platform as a symbol of state overreach.

This rhetoric stands in sharp contrast to the more balanced, deliberate efforts to regulate platforms that began over a decade ago with the Marco Civil da Internet. It also underscores the challenge of striking a balance between free expression and combating disinformation in a deeply polarized environment—a problem that Brazil is far from alone in facing.

The political pressure surrounding the ban on X does not bode well for Brazil's ongoing efforts to counter online disinformation and hold platforms accountable for harmful content.

In 2020, the Brazilian Congress introduced a law against fake news, as the Brazilian media calls it, which aims to create control mechanisms and increase transparency around political advertising and content moderation policies.

But despite good intentions and a very relaxed approach to “regulated self-regulation,” the final version of the bill was blocked in the Brazilian Parliament after three years of debate.

It followed a campaign by right-wing politicians and Big Tech lobbyists who labeled the law a “censorship bill” and argued that it would restrict free speech and suppress political discourse. At this point, the law's fate seems uncertain.

Meanwhile, the Supreme Court announced on August 23 that it would address two key parts of the Marco Civil ruling in a judicial review to be held in November.

The first is the Judicial Notice and Takedown process, which critics say is too slow and allows platforms to forgo implementing more robust content moderation mechanisms. But supporters claim that judicial oversight is necessary to prevent platforms from arbitrarily removing content, which could lead to censorship.

The second area under review is the part of the Marco Civil that sets the penalties for companies that do not comply with the rules. The debate revolves around whether the current penalties, particularly the suspension of services, are proportionate and constitutional. Critics argue that suspending an entire platform violates users' rights to freedom of expression and access to information, while supporters insist that it is a necessary tool to ensure compliance with Brazilian law and protect sovereignty.

The fate of the “fake news law” and the Supreme Court’s review could set new legal standards for platforms in Brazil and determine how far the country can go in enforcing its laws against global technology companies to combat disinformation.

And while the Supreme Court did not directly link the review to the ongoing feud with X, the fight with Musk provides the inevitable political backdrop to discussions about the future direction of Brazil's experiment in platform regulation. The fallout from this seemingly personal dispute could therefore have significant regulatory consequences for Brazil and potentially other countries as well.