Transcript 0:00 Elon Musk, the CEO of Tesla, Starlink, and SpaceX, and the owner of X, the social media platform we used to call Twitter, is no strange to controversy or conspiracy theories. 0:14 There's even a Wikipedia page dedicated exclusively to his wacky worldviews. 0:22 Earlier this year, the American press announced that Musk had started to echo several of Donald Trump's claims about the American voting system, putting forth distorted and false notions that American elections were vulnerable to fraud and illegal voting by non-US citizens. 0:43 He has now pointed his cannons at Brazil. Just like he did with Trump, Musk has parroted the theories of another far-right figurehead, Brazil's former President Jair Bolsonaro. 0:58 Musk has stated that Brazil is on the verge of becoming an Orwellian dystopia in which one man, Supreme Court Justice Alexandre de Moraes, decides what can be said online. 1:12 Justice Moraes took the bait and put Musk under investigation for obstruction of justice, inciting criminal activity, and the willful criminal instrumentalization of X. 1:26 This week, we will talk about the issue of content moderation in Brazil and about the beef between Elon Musk and Alexandre de Moraes. My name is Gustavo Ribeiro. I'm the editor-in-chief of The Brazilian Report. 1:41 This is Explaining Brazil. 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He has yet to fulfill that promise, though. 4:45 For more detail on the investigation Elon Musk faces in Brazil, I suggest you go to the Brazilian Report's website. 4:53 Because in this podcast, we want to talk more about online speech regulation and how Elon Musk's charges against the Brazilian Supreme Court may alter the debates around the issue. 5:07 And we welcome Daniel Castro, vice president of the Information Technology and Innovation Foundation and director of the foundation's Center for Data Innovation. Daniel, thanks for joining us. 5:21 Freedom of speech, whether online or offline, is a bit of a different discussion in Brazil compared to the US, right? It's not an absolute thing here. 5:31 For instance, racist or homophobic comments constitute crimes in Brazil. Uh, they're not just frowned upon. 5:41 To what extent is this Musk-Moraes dispute an attempt from the X owner to make US concepts of freedom of speech apply to a foreign country? Oh, it's a great question. 5:53 You know, Elon Musk has, of course, notoriously said he's a free speech absolutist, but the reality is he's taken different approaches to free speech in different countries. 6:05 So for example, in India, there's been You know, government requests for take downs of, um, you know, politically sensitive content, other objectionable content, and Elon Musk has taken it down. 6:17 Um, Twitter, or, or as it's now known, X, has its own set of principles and, and rules for, um, what is allowed on the platform. Um, and, you know, that does not include, um, you know... 6:30 The, there are exceptions to what's allowed on that platform that are even, you know, legal speech in the United States. Um, so, you know, there's a lot of nuance here. 6:39 I think what's happening in Brazil is that, you know, Elon Musk has said he disagrees with these specific take down requests, and, you know, he's, uh, basically said he will not abide by them. 6:51 Now, you know, the problem is no company can unilaterally ignore court orders, um, and, and get away with it. 6:58 You know, no, uh, individual can unilaterally ignore, um, what a, you know, what a, a democratically elected, um, government requires a, a, a lawful company to do. 7:10 And so that's where I think there's significant tension here. I, I think it's less about applying America's vision of free speech and more about applying Elon Musk's vision of free speech. 7:21 In this current dispute, we've got one group represented largely by Elon Musk and Brazil's right wing crying censorship. 7:30 The other, backed by Supreme Court Justice Alexandre de Moraes and Brazil's left, calling it content moderation. When does one become the other? 7:40 And where do court orders that suspend social media accounts for fake news and anti-democratic speech lie in this discussion? More toward moderation or more towards censorship? It's a great question. 7:57 Y- So this is a, a challenge that, you know, I think many, um, countries wrestle with is, you know, where, where do you draw the line on free speech? 8:05 And of course, um, you know, doing it on online and social media, um, you know, is sometimes different than doing it in public spaces, um, you know, in the offline world. 8:17 And the reason it's become different is because, you know, sometimes governments are holding these companies liable for basically, you know, making the wrong choice in terms of whether they leave third-party content on their platforms or not. 8:31 And so, you know, there's kind of a, um, you know, there's, there's multiple dimensions to these arguments about censorship a- and the impact of, of various policy in th- the, in this space. 8:42 You know, one scenario is, you know, a company receives a very explicit take down order. 8:47 You know, they receive a, a request or an order that says, um, you know, "You must remove this account," or, "You must remove this post." 8:54 Um, if those, you know, are, uh, lawful orders, you know, if they're orders that, you know, there's a chance for judicial review, um, you know, it's, it's, you know, uh, adheres to national law, domestic law, you know, those are, are fairly straightforward. 9:10 I think what happens is that, um, you have these other types of requests sometimes, um, where they are either incredibly broad, so they're not about specific accounts, but they're about, um, a large amount of information, uh, that they want to restrict. 9:25 Maybe they wanna block, uh, an entire hashtag. Um, maybe they wanna block, um, you know, thousands of accounts, um, without maybe clear evidence, um, of something. 9:34 Um, or sometimes they're asking for these platforms to turn over information about the users on their platform. Um, again, you know, sometimes that is completely valid, but, but sometimes it's not. 9:46 Maybe it doesn't, you know, adhere to specific laws. What we've seen is that many of these platforms are willing to challenge these laws, um, especially when they receive an order that they do not believe is lawful. 9:58 Now, that is their right, you know, to challenge it, typically, you know, under, under these laws. They can go to a court. Um, they can appeal. 10:05 Um, but after that appeal, if they lose, you know, then they have to take these things down. 10:10 Um, and, and that's where I think where we start to get into these, you know, uh, claims of censorship more recently is not just because, you know, they've been ordered to take something down, um, but they've been threatened directly, um, for maybe not moving fast enough for appealing, um, you know, some of these take down requests. 10:30 And then, you know, I think the, the bigger fear that a lot of these platforms have is that this creates a chilling effect on all of these platforms. 10:38 And so in the future, especially if they see aggressive legal action taken against, you know, an individual within the country that works for one of these platforms, um, sometimes, you know, individuals have been jailed even for these types of, you know, resistance, that, you know, that will create the chilling effect where any request from the government, even unlawful ones, that these platforms will take down. 10:59 And that, you know, typically in the offline world, what happens is if somebody's speech is being, uh, challenged, and they have a right to challenge that, that individual can go to the court and challenge it. 11:09 But what happens is with these i- in the online space is it's no longer the individual that gets to challenge it. It's really these platforms. 11:16 And so people are depending on the platforms, uh, to protect their free speech interests, but the government's also depending on the platforms to take down lawful orders, and that's when these platforms get caught in the middle. 11:27 Um, and, you know, many of them try to do the right things, um, but as we see, you know, in some of these cases, you know, that's not always the case, or sometimes they, you know, uh, the leaders of these, uh, platforms may have different views, and they may inject their views into the decisions that their companies take in these, uh, you know, controversial cases. 11:47 Now, regarding content moderation online and stepping away from the Musk-Moraes controversy, can there ever be a Goldilocks solution, something that freedom of speech advocates can accept and which can still curtail potentially harmful content online? 12:05 Something that everyone can be happy with it, not too hot, not too cold Well, I think it depends on what you mean by everyone. I, I... 12:13 you know, as you pointed out, there's no, um, global consensus on what free speech should be. 12:19 Uh, free speech in the United States is different than Brazil, it's different in France, it's different in India, um, it's different in many countries, and that, that is okay. 12:28 You know, that, that's why we have different countries and, and, you know, democratically, um, you know, elected governments should have that right to set those different, uh, lines and draw those different lines. 12:38 So I don't think the goal is to have one set of free speech for the entire internet. What we have to be concerned about, though, is when one country tries to impose its views on the rest of the world. 12:52 And so, you know, where that's most problematic is where we're seeing content being taken down, not just within a country, but globally. 12:59 Or we've seen, you know, blocks on s- you know, requests or orders that a platform block a user, not just within their country, but globally. 13:09 That's where I think we have to be very careful that we don't allow, you know, kind of a, a race to the bottom in terms of, you know, free speech that, you know, just everyone agrees on, because that's not gonna be the free speech that I think, you know, different countries expect. 13:22 Um, and so that's the, that's, I think, one of the biggest issues. 13:26 Now, the second part of this, and this is where, you know, we have seen global cooperation and consensus, is around the question of how should platforms treat lawful requests for user data, including, you know, for any type of legal investigation, including when there's arguments that, you know, somebody has gone online and said something unlawful. 13:46 And this is where, for example, the OECD has, you know, uh, come together in, in two thousand twenty-two, um, and there was an intergovernmental agreement on common approaches for safeguarding user data, um, in respect to, you know, when there are, are law enforcement or national security requests for user data. 14:07 Basically, you know, some of these principles outline things like, you know, you wanna make sure these are lawful requests. 14:12 There needs to be certain safeguards in place to make sure that, you know, you're protecting user data. 14:17 Um, and, you know, there was a whole set of principles that many countries agreed to, um, and that's what you wanna see. You want... 14:23 You don't wanna have, you know, these, these companies that are, you know, global in nature, having to go to every different country and figure out, you know, what's the, you know, if we receive a lawful order, how do we determine if this is lawful? 14:38 Um, you know, there, there's so much that goes into that. You wanna have a, a good kind of global standard of what that baseline expectation is. You know, it should come f- with judicial oversight. 14:49 Um, you know, it should specify, uh, specific accounts. It shouldn't be too broad. That's, I think, where we should work on agreement. 14:56 That way, you know, these platforms aren't, you know, thrust in the position of trying to be, you know, both judge and jury on, you know, when they receive these requests. 15:06 How much do you think political point scoring harms the regulation discussion in Brazil and elsewhere? 15:12 Oh, I, I think it's, you know, that's, um, you know, the, the politics of content moderation are, you know, the defining issue for how, you know, um, you know, most legislators and policymakers look at this issue, right? 15:26 There's always content that someone will find objectionable, um, you know, and, and there are claims made on both sides, right? That too much content is taken down, that too much, um, content is being left up. 15:38 And, you know, 15:40 that has, you know, basically put most of these platforms into the very, um, unenviable position of, you know, having all sides of the political spectrum, um, you know, angry at them and, and telling them they're either doing too much or they're doing too little. 15:56 A-and there is kind of no Goldilocks approach that they can take, um, where everyone thinks they're, they're doing the right thing. 16:02 And so, you know, these tech companies have become, you know, political punching bags, um, and, you know, very popular ones because of that fact. 16:09 And the problem with that is that that doesn't allow, you know, policymakers to actually advance, you know, reasonable policies, um, that say, "Okay, 16:19 y-you know, um, these are the type of lawful requests you're gonna get. Um, these are the types that, you know, if you receive a request, you can ignore. 16:27 These are the types that, you know, we would like you to be more proactive on addressing yourself and, and kind of working hand in hand." 16:33 There are many areas where, you know, there are, um, there is going to be speech that is, you know, what they call awful but lawful. You know, that speech that probably many of these platforms want to take down. 16:45 Um, we don't wanna get in a situation where they're only removing illegal content. Um, that is probably not the types of platforms that most, um, users want. 16:54 But, you know, when you get into this kind of it's a political hot potato of who's going to make the decision of what content to come down, um, you know, that's, that's pretty problematic when you put all of that on the platform. 17:06 Um, but you certainly don't want to be in the position either of the government saying certain content is illegal, but the platform saying, "Well, we're gonna leave it up anyway." You know, that's also not very tenable. 17:16 And so, you know, hopefully, you know, coming out of these kind of disputes that we're seeing, um, you know, hopefully we'll see, you know, both sides, you know, maybe, uh, look for a little more, uh, moderation in their approach. 17:27 So in terms of government, what we would hopefully wanna see is, you know, government being, you know, very specific on the types of requests it's gonna take-- it's gonna require platforms to take down, maybe, you know, not be too aggressive in going after, um, individuals and companies, um, if, you know, they're just trying to obey the law. 17:44 Um, but at the same time, you know, these companies need to be following lawful requests, and that's the type of balance that, you know, hopefully will kind of lead to a little bit of, you know, cooling down of, of the temperature in this space. 17:56 A twenty twenty-two report by NGO Freedom House called Brazil, India, Nigeria, both swing states on which the future of internet freedoms hinge due to their potential regional or global influence on the future of internet governance. 18:14 What do you make of that assessment? And from what we've seen over the past week, do you think Elon Musk shares [laughs] that view with regard to Brazil? 18:23 Um, I don't think, you know, there can be any, uh, you know, global multinational tech company that doesn't, you know, have a presence in Brazil. 18:33 So I think Elon Musk's threat to abandon the Brazilian market, um, is, you know, unlikely to occur or would be very surprising, at least if, if he, you know, follows through on that threat. 18:46 Um, certainly we've seen, um, you know, India, Brazil, um, and, and Nigeria, you know, be probably at the forefront of some of the, you know, various internet, um, shutdowns, you know, takedown of content in the past. 19:01 Uh, we've seen, you know, uh, judicial orders that, that go pretty far in, in some of these countries, and I think that's probably what, you know, Freedom House is referring to or has referred to in, in some of its, you know, previous reports. 19:13 At the same time, you know, these are, um, first of all, you know, uh, especially in terms of India and Brazil, I mean, you know, some of the, the largest, um, user bases of, you know, internet users. 19:24 Um, and also, you know, uh, you know, reflecting, um, you know, different norms and expectations of, of, you know, what is going to be allowed online. 19:34 And this is something that, um, I think, you know, any platform, again, working in this space, they're gonna have to find solutions that work, you know, in different countries. 19:44 And that won't always be the same solution, um, but it should be something that takes into account, you know, both the fact that they are global platforms, but also that they have to respect domestic laws. 19:56 How far along is Brazil on the path towards social media regulation, and can the world learn from Brazil's social media regulation push? It's a great question. 20:06 So, you know, I've just worked on a report, um, with the, um, Brazil Institute, um, at the Wilson Center, where we were looking specifically at, you know, innovation and, and liability for online intermediaries, um, in Brazil and, and some of these, you know, regulations and social media regulation. 20:26 And, you know, the United States was one of the first countries to really put forward, um, this, uh, you know, uh, early law, Section 230 of the Communications Decency Act, which said that, you know, intermediaries online are not responsible, are not liable for the speech of their users. 20:44 And that law has had a, you know, tremendously positive effect in terms of allowing, um, all sorts of, you know, uh, social media sites and other types of services to flourish online. 20:56 Um, because, you know, an, an email provider, for example, is not liable if somebody sends, um, you know, a, a threatening message through that service. 21:05 Um, and, and, you know, a, a dating app is not responsible for necessarily what its users do on these services. 21:12 That's been really useful, but obviously we've seen, um, some opposition to that in, in recent years, concerns that social media companies, for example, are not doing enough to police bad behavior. 21:22 What's interesting is that, you know, Brazil has also, you know, um, looked at, you know, creating, you know, extending, you know, this Article 19 of the Civil Rights, uh, framework for the internet, 21:33 um, to, you know, to, to do similar things, to put in place, um, you know, a, a liability framework, um, that would, you know, both protect third parties, um, but also, you know, put in place, you know, uh, specific guidelines on, you know, how, uh, should the, the ju- the judiciary should, you know, notify platforms and remove content. 21:54 And, you know, that's the type of development that I think a lot of countries are going through right now. 22:01 They're asking these questions of, okay, you know, we want to see these online companies be responsive, um, but we don't necessarily, you know, we don't wanna go too far. 22:10 We don't want to create a regime that could be abused. 22:14 Um, we don't want to create, you know, laws that, um, you know, will, will lead to censorship or that will go maybe on the other side and lead to too much, you know, disinformation and misinformation online that can also be incredibly problematic for society. 22:29 And so, you know, I think there's a lot of experimentation in this space. Um, there's a lot of, you know, um, I think there's gonna be a lot of, uh, trial and error. 22:38 Um, but I think one of the most important, you know, principles that, you know, uh, any country should take when they're rewriting the laws or writing new laws about social media is trying to impose liability and responsibility as close to the actual speaker as possible. 22:56 And so many times that will not be about imposing, you know, more liability on platforms. Um, 23:03 but there will be potentially need to, um, you know, make sure that platforms are responsible for their own conduct, that they are responsible for their own speech, and that they also have certain obligations perhaps around transparency, um, so that we can see when they are taking things down, so that we can see if there is censorship occurring, whether it's occurring from the platform or whether it's occurring from, um, other, you know, governments, whether it's, you know, domestically or even foreign governments. 23:33 And I think that's, you know, a kind of a, a path forward that, you know, provides more information, um, so that policymakers can make better decisions going forward, um, but without kind of going so far that, you know, what you don't wanna have is a bunch of, um, you know, either elected officials or, you know, politicians or bureaucrats, uh, you know, deciding what content stays up and what content goes down, what content's promoted and what content is not promoted. 23:58 That is a world of censorship that I think is very far away from pretty much any, you know, democratic vision of what free speech should look like. Daniel, fantastic stuff. Thank you very much for joining us. 24:10 Daniel Castro is a vice president of the Information Technology and Innovation Foundation and director of this foundation's Center for Data Innovation. 24:20 If you like Explaining Brazil, please give us a five-star rating wherever you get your podcasts. Or better yet, subscribe to The Brazilian Report, the journalistic engine behind this podcast. 24:32 We have a subscription-based business model, and your memberships fuel our journalism. Our work has been recognized for its quality, and we have won several international awards. 24:45 More recently, The Brazilian Report was nominated for Best News Website in the Americas by the World Association of News Publishers, WAN-IFRA, so fingers crossed for us [laughs]. 24:58 And to continue this work, we need your support. Go to brazilian.report/subscribe. I'm Gustavo Ribeiro. Thanks for listening. Explaining Brazil will be back next week. 25:12 [upbeat music]
