The Ban On Twitter in Brazil & The Opportunity to Optimize Social Media Regulation

Let’s face it: Twitter (now X) plays a major role in determining who rules any country in our times. The United States’ presidential politics has been influenced immensely by Twitter over the past decade. This trend runs across all levels of politics, elections, and public sector management. The Brazilian Supreme Court’s order to block Twitter for failing to present a legal agent in Brazil to resolve certain constitutional issues has raised a lot of questions and ignited tensions. However, beneath the surface lies deeper legal questions that need to be answered.

Which legal theory prevails in a conflict between a tech giant and a sovereign state?

What happens if a social media violation affects a lower tier of the political order which lacks the powers of a national supreme court to summon representatives of the site in question?

What is the legal status of accounts on social media sites? Are the account holders liable for their posts on the social media site, or do the accounts constitute a class of independent entities that act on their own?

These three fundamental questions must be answered in this Twitter case and revisited several times in the future. Misinformation in elections on social media will remain a challenge for years to come, and the questions surrounding it will outlive the current ban on X in Brazil.

Also, the digital sector is growing at an extremely fast pace that will ultimately force a legal revolution to enable national judiciaries to catch up with the technological changes ahead of us! Indeed, we are at a watershed moment in history, which gives us a unique opportunity to debate and set the right tone to handle these emerging digital issues.

This article will attempt to conduct a legal analysis of the salient features of these core legal issues as they relate to the efficient regulation of digital technologies.

First of all, every country has its legal traditions and systems. Typically, a simple international contract states the jurisdiction in which disputes will be resolved. Social media, on the other hand, raises different questions about the law. A mega site like X actively shapes the political and legal discourse, thereby intersecting with the legal philosophy of the land. Thus, questions on digital regulation of social media relate to the original constitution of the land and its later developments. At the heart of this Twitter case is the divergence in the legal philosophies that drive the Brazilian Supreme Court and the legal ideals of Twitter’s key executives.

As an American corporation, Twitter seems to be thinking about the parameters of the American Constitution, which is balanced by the Bill of Rights. Brazil, on the other hand, counterbalances its Constitution with the risk of its overthrow or suspension. This is something that most American thinkers cannot imagine or understand. However, in the historical evolution of the Republic of Brazil, significant events have made it necessary to protect the Constitution.

Hence, the Supreme Court system of Brazil has a primary goal of ensuring compliance with the Brazilian Constitution. The Supreme Court plays the role of "Guardian of the Federal Constitution". This implies that most of the things the Brazilian Supreme Court will typically sit on are potentially treasonous in their nature. Failure to comply with the rulings of the Court could have serious consequences.

It is, therefore, apparent that Twitter does not seem to appreciate the seriousness of the Brazilian Supreme Court's rulings and demands. They cite the need for transparency and due process before accounts proven to be guilty of misinformation are closed down on their platform.

Conflicts of laws are not new in international trade. Hence, there should be a mechanism of mediating issues relating to foreign social media sites. Collaboration and cooperation are much more appropriate in such standoffs. Thus, alternative dispute resolution might be an excellent conduit that can be used to get social media and foreign digital platforms to interact, understand their obligations in the local context, and resolve issues. Such a mechanism will be necessary to deal with future incidents.

Secondly, everything that has occurred in this standoff can happen at the lower levels of the hierarchy of government. It could happen in state elections or city elections. Will every incident go before the Federal Supreme Court for every emerging digital platform to show up in court? Should serious violations and misuse of digital resources at the state or municipal level be overlooked because their courts do not have the same powers as the Federal Supreme Court? This calls into question the administrative feasibility of the precedents being set in dealing with digital platforms and social media sites.

The digital ecosystem operates on the basis of functionality and efficiency. Twitter is said to have some 40 million users in Brazil. Some sectors rely almost solely on Twitter for survival. Some people earn their living from Twitter revenues. In the area of law enforcement,? Twitter plays a major role in sharing operations and activities to deter the public from committing crimes. This goes a long way to keep Brazil safe.

A ban on any organization for serious threats to the Constitution of any country is justified. However, the Brazilian Supreme Court, in its good conscience, will naturally be inclined to prevent the unintended losses suffered by Brazilians in future rulings. It is, therefore, fair to say that cooperation and the creation of a mechanism for resolving disputes of this nature will have to evolve and grow.

Digital businesses learn from all over the world, and they share their ideas and knowledge with the countries they operate within. Therefore, a decision to work together to formulate standards that can optimize the regulation and use of social media might be in the best interests of both the Brazilian Judiciary and Twitter. This could set precedents that can be applied to other digital businesses.

Finally, the primary clash between the Brazilian Supreme Court and Twitter relates to procedural differences. This must be clarified as a question of law. What is the legal nature of the offending accounts? Are the owners who set up the accounts directly responsible, as Twitter seems to assume? Or are these accounts in and of themselves offensive and directly liable for closure?

These questions are likely to gain more relevance in the future when exponential technologies like artificial intelligence (AI) generate actions and processes independently. This debate has been intense in the pharmaceutical industry since the famous DABUS case was launched in 2018. Twitter seems to be asserting that the individuals who own and formulate the misinformation that creates chaos must be held personally accountable according to the laws of Brazil while acknowledging their civil liberties and right to due process.

On the other hand, the Brazilian Supreme Court seems to be playing a Guardian role in protecting the Constitution. As such, the legal effect of the misinformation in question are serious. Hence, they want a standing commitment by Twitter (or X) to ensure that such dangerous acts are continuously filtered and controlled. ?

In conclusion, the current legal issue between Twitter and Brazil can be a tool for constructive legal discourse. Rigidity on either side can cause vital issues to be overlooked. Vital regulatory matters like the evolution of an appropriate legal philosophy to deal with digital conflicts, the proper definition of social media accounts, and the formulation of functional solutions to be applied to digital conflicts at all levels of the public sector and governance can be achieved in a collaborative and cooperative discourse. One thing is sure – this is not going to be the last conflict between a useful foreign digital resource and the Constitution of a sovereign state. Our generation has a unique opportunity to look beyond the immediate conflict and set the proper blueprints for the optimal use of digital resources.

Sam Yeboah (LLB, London)

Writer & Researcher on English Law, Digital Law & International Law