Brazil’s ban of X amid a fight with Elon Musk over disinformation on his prized social-media site offers a cautionary message for other democracies trying to balance freedom of expression with the integrity of information ahead of elections.

There’s no easy solution, including in Brazil, where the judiciary has broad powers to demand the removal of specific posts and accounts. Exercising that authority comes with its own peril - especially the danger that a total ban of the platform formerly known as Twitter will fuel accusations of censorship and further fracture the global internet.

“Even if we look at international standards of freedom of expression, blocking an entire platform is seen as a drastic measure,” said Veridiana Alimonti, a Brazil-based expert with the Electronic Frontier Foundation. “It’s problematic when it involves platforms that host both legal and illegal speech.”

While governments worldwide are waging similar battles against fake news and hateful content on X, Europe and the US are unlikely to replicate Brazil’s move for now, according to officials, academics and industry experts. That’s owing to a relative lack of legal authority and the inherent political risk in taking on the world’s richest man, who’s increasingly aligned himself with right-wing figures and endorsed Republican Donald Trump in the November US election.

Musk’s feud with controversial Brazilian Supreme Court Justice Alexandre de Moraes over the order barring X intensified an ideological war that’s become a rallying cry for the billionaire’s right-leaning allies around the world. It culminated the confrontation with regulators that Musk has been stoking since he bought the platform in late 2022 and swiftly remade it into a bastion for content that serves his own political and social views.

The Supreme Court has drawn Musk’s wrath over its inquiry into whether disinformation on social media prompted supporters of former president Jair Bolsonaro to storm public buildings on Jan 8, 2023, following his election defeat. In April, Moraes opened a probe into whether Musk - who has openly backed Bolsonaro for years - obstructed justice and whether X had sought to illegally influence public opinion, accusations the billionaire and the company reject.

Bruna Santos, head of the Wilson Center’s Brazil Institute, said there should be a discussion about whether Brazil’s high court is overstepping its authority, and she said she does believe that Moraes has “gone too far” on several occasions. However, she said that conversation is hard to have at this moment, when questioning Moraes “sounds like you are defending Musk”.

Adding to the pressure enveloping X, its head of global affairs, Nick Pickles, is departing after more than a decade with the company. Scrutiny of X has intensified since Musk’s 2022 takeover, particularly after he fired thousands of people, including many involved in communications and policing disinformation on the platform. An X spokesperson declined to immediately comment but referred a reporter to Pickle’s post late Thursday announcing his departure.  

Other governments have challenged X with different results. While Musk is standing his ground in Brazil, X has complied with demands to take down content in countries such as India, where posts about farmer protests were singled out for removal earlier this year by the government. This week, X agreed to EU demands to stop processing the personal information of European users to train its artificial-intelligence chatbot Grok.

EU officials warned X in July against deceiving users into engaging with potentially harmful content - a probe that could could pave the way for fines of up to 6% of the company’s revenue. There’s no specific timetable for the inquiry, which is one of the first under the Digital Services Act, which requires platforms to remove illegal content and police disinformation.

Following riots in the UK that authorities attributed to false information spread via social media, EU digital czar Thierry Breton warned Musk last month to comply in a letter posted to X - drawing an expletive-laced response by the billionaire to his nearly 200 million followers on X.

That increasingly combative stance is making some EU policymakers more aware of the limits in their strategy of by-the-book legal proceedings and hefty fines. The DSA allows for suspending an online platform, but only on a temporary basis and when the alleged violation poses serious harm to a person’s safety or life.

Christel Schaldemose, the centre-left Danish lawmaker who played a key role in passing the DSA through the European Parliament said the EU is not equipped to deal with a company that refuses to comply.

“We wanted to use high fines as deterrents - but they don’t seem to bother Musk,” Schaldemose said. Over the next two years, she said, the EU should stress-test its regulation and - if needed - strengthen its countermeasures beyond fines. She remains convinced, however, that “the Brazilian way is too far-reaching.”

In the US, regulators have little recourse to bar harmful online content, thanks to a provision in the 1996 Communications Decency Act known as Section 230 that shields websites from liability for third-party content on their platforms. While lawmakers in both parties agree on the need to update the nearly three-decade old measure, Republicans and Democrats disagree vehemently over what changes to make.

Biden administration officials this year signalled a more hands-off approach toward disinformation. On Tuesday, the Justice Department issued new guidelines saying it would not push for removal of online content when sharing information with social-media sites about foreign threats to national security or elections.

Instead, Justice officials will leave it to platforms to decide whether to block users or remove harmful content. The move follows accusations from Meta Platforms Inc chief executive officer Mark Zuckerberg that the Biden administration had violated free-speech principles in pushing to censor Covid-related content.

Santos pointed out that Brazil’s standard for free expression is very different than the protections afforded by the First Amendment in the US.

“That’s one thing which is obviously not applicable in Brazil because Brazil’s Constitution does not interpret the freedom of speech as an absolute right,” Santos said, noting that Brazil’s system of government created a very strong judiciary empowered to act “in defence of democracy”.

Still, the US Congress decided that freedom of speech doesn’t outweigh national security when it comes to TikTok, which faces a ban unless its Chinese parent divests the the video-sharing app. Part of the mechanism for enforcing this ban would be the same that Brazil is using to block X: prohibit local internet service providers from hosting the website.

In fighting Brazil’s ban, Musk can count on support from right-wing allies. Bolsonaro’s followers are planning a march on Saturday - Brazilian Independence Day - to call for Moraes’ impeachment. Local elections next month in South America’s largest economy will be an important test of the strength of Bolsonaro’s movement since he lost the presidency in 2022.

Santos said that accusations of censorship risk being used by Bolsonaro supporters to cast doubt on the validity of the result. A poll by AtlasIntel released this week highlighted deep divisions provoked by the top court’s move: Almost 51% of respondents said they disagreed with Moraes’s decision to ban X, while just over 48% agreed.

To curb the dissemination of fake news, President Luiz Inacio Lula da Silva’s government has sought legislation holding big tech companies responsible. Reviving the bill now, however, is near impossible, owing to the politicisation of the topic, said a Justice Ministry official familiar with the situation who requested anonymity because they were not authorized to speak publicly.

For now, the standoff shows no signs of easing, with Musk refusing to comply with the judge’s orders and the fight embroiling some of the billionaire’s other business interests. His Starlink satellite communication service had its bank accounts frozen by Moraes, and his SpaceX venture has warned employees against travel to Brazil for work or personal reasons.

“Where this is heading from here will really depend on Elon Musk. I think if Elon Musk decides to start to comply, as he eventually did in India, for example, it might be  that X comes back,” said Mariana Valente, a law professor and the director of the Brazil’s InternetLab, a think tank. “But if Elon Musk doesn’t act differently, I think X or Twitter will be blocked in Brazil for a long time.”

  - Bloomberg