Billionaire owns X (formerly Twitter), but does not have an executive role; in the case of the Americanas deficit, billionaire shareholders such as Lemann and Sicupira were not called upon
The subpoena of Elon Musk issued by Supreme Court Justice Alexandre de Moraes has 2 controversial aspects, according to legal professionals interviewed by the digital newspaper Poder360:
- 1) format and means of contact – the order was made through the STF profile on X (formerly Twitter). The Supreme Court published the decision and tagged the profiles of Musk and the Government Affairs department of X in the post. When you want to subpoena someone abroad, the legally established path is a letter rogatory: a document that is officially sent to the other country to be delivered to the person targeted by the court order;
- 2) person subpoenaed – Elon Musk owns X, but does not hold an executive position in the company. X’s CEO is Linda Yaccarino. She has the power to appoint a representative for X in Brazil (one of Moraes’ demands). A similar example was the billion-dollar loss at Lojas Americanas, when the 4th Corporate Court of the Court of Justice of Rio de Janeiro subpoenaed the company’s then-administrators, Miguel Gutierrez and Anna Saicali, and not 3G Capital Partners, the investment company of billionaires Jorge Paulo Lemann, Marcel Telles and Carlos Alberto Sicupira, key shareholders of the retailer.
Moraes subpoenaed Musk on Wednesday (August 28, 2024). In the decision, the minister orders the billionaire to identify who is the legal representative of the platform in Brazil. He grants a deadline of up to 24 hours and states that the social network will go offline in the country if the order is not complied with. Read the full of the decision (PDF – 107 kB).
In the image below, you can see how the subpoena was delivered. The STF profile on X he responded (print on the right) to a post from the platform’s institutional relations account (print on the left) with the image of the warrant signed by Moraes, marking Musk on the social network.
The businessman is investigated in Survey 4,957 for alleged participation in the crimes of obstruction of justice, criminal organization and incitement to crime.
For the constitutional lawyer Andre Marsigliathe direct subpoena of Elon Musk renders the order null and void. According to him, the current CEO of X, Linda Yaccarino, is the one who should have been subpoenaed.
“She is legally responsible for the company, and only those who are legally responsible for the company are those who are authorized to receive subpoenas on behalf of the company. If Musk is just a shareholder and does not respond, the subpoena is null and void.”Marsiglia said to Poder360.
He also said that Musk can appeal the subpoena so that the single-judge decision, taken individually by Moraes, can be analyzed in the Court’s plenary by the other ministers.
Lawyer specializing in criminal law, Berlinque Cantelmo also claims that the subpoena can be challenged because the businessman does not hold the position of CEO or any other executive position at X. The lawyer agrees that Linda Yaccarino should have been the target.
“A company’s subpoena should be addressed to the person who holds the principal executive office, i.e., the CEO or other designated legal representative. In X’s case, the current CEO, Linda Yaccarino, would be the most appropriate person.”says Cantelmo.
Constitutional lawyer Vera Chemin disagrees. She believes that, in the absence of a legal representative for the company, as is the case with X in Brazil, the responsibility is transferred to the owner.
“The legal representative is responsible before the courts for the company’s actions, hence the reason Moraes summoned Musk to appoint a legal representative for X, because there isn’t one, so he went there and summoned the owner,” says Chemin.
According to the lawyer, for Yaccarino to represent the platform legally, she would need to have this role expressed in the articles of association drawn up by the social network.
OX informed this Thursday (29th August) that it will not comply with Moraes’ determination to “censor their political opponents” and is awaiting the blocking of the social network. The platform also stated that the minister “demands” that they violate Brazilian laws and ends his message with the following sentence: “To our users in Brazil and around the world, X remains committed to protecting your freedom of expression”.
INTIMATION CONSIDERED ILLEGAL
Although Chemin defends the possibility of subpoenaing Musk directly, even without an executive position at X, she considers the decision as “illegal” and a “absurd”.
The constitutionalist cites the fact that Moraes delivered the summons through a post in X. Traditionally, the subpoena is delivered personally to the target, and only after delivery, a period of 24 hours is given for the court order to be executed, which, in this case, is the removal of the social network from the air.
She also states that these measures should have been taken:
- letter rogatory – as Musk is a foreign citizen and has no legal representative in the country, Moraes would have had to issue a letter rogatorya legal instrument for communication between the courts of different countries;
- term – it is not possible to count the 24-hour period as there is no guarantee that the entrepreneur became aware of the summons at the exact moment in which the post was published.
In addition to the absence of a letter rogatory, the lawyers also draw attention to the way in which the summons was delivered: via a message on social media. They say there is no legal basis for summoning a person in this way.
In the opinion of a lawyer specializing in corporate criminal law Henry ZigartMoraes’ decision is seen as “another mistake” from the STF: “The summons cannot be made through your own social network, because in addition to there being no legal provision in this regard, it ignores the mandatory formality of the act, in clear violation of procedural principles, and must be declared null and void”.
Coordinator of the legal group Prerogativas, which is sympathetic to the president’s government Luiz Inácio Lula da Silva (PT), Marco Aurélio de Carvalho stated that Moraes’ decision is “worrying”.
“I think that the procedures for summons are provided for in specific codes, and these codes must obviously be respected by each and every judge. I think it is yet another act of a political nature.”he declared.
Carvalho has defended Moraes in other controversial situations. He said on August 13 that there was nothing compromising in the report. S.Paulo Newspaper which said that the judge used unofficial methods to investigate Bolsonaro supporters.
“BUREAUCRATIC AND TIME-CONSUMING”
The lawyer specializing in State law Wilton Gomes considers that the summons via X is justified. He called the use of a letter rogatory “bureaucratic” and “too late for today’s times”.
OLD DISCUSSION
The discussion involving summons by electronic means is not new. In 2017, the CNJ (National Council of Justice) approved the use of technological tools for the communication of procedural acts, citation and summons through messaging applications or social networks. The idea gained strength during the pandemic and resulted in the publication of the resolution 354 of 2020 (PDF – 105 kB), also from the CNJ.
In 2023, however, the STJ (Superior Court of Justice) vetoed the electronic communication of procedural acts on social media. The decision was made by then-Minister Nancy Andrighi, during a special appeal trial. Read the full of the decision (PDF – 91 kB).
According to Chemin, for all intents and purposes, the STJ’s understanding is valid until the Supreme Court also decides to express its opinion.
UNDERSTAND THE MORAES X MUSK CASE
On Wednesday night (August 29), Moraes summoned Musk to identify a legal representative for the social network in Brazil within 24 hours, under suspension of the social network in the country.
The social network had announced the closure of its headquarters in Brazil on August 17 as a result of the decisions of the STF minister that imposed the suspension of profiles under investigation.
Upon announcing his departure from the country, the platform released the full text of the minister’s decision, which is being processed under confidentiality. The document states that Moraes requested the blocking of profiles that published messages “antidemocratic” or with hateful content against authorities – it is not clear how this would have been configured as an infraction of Brazilian laws.
The company, however, reportedly did not comply with the orders. The judge then increased the fine and gave 24 hours to block the accounts, under penalty of imprisonment for disobeying the court order.
He also threatened to arrest Rachel de Oliveira Villa Nova Conceição “for disobedience to a court order”. Rachel de Oliveira is cited as the then “representative” of X in Brazil.
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