In response to a request to rule on the legality of blocking TikTok in New Caledonia in May 2024, the Conseil d'État today outlined the conditions under which the Prime Minister may temporarily suspend access to a social network.
It ruled that in exceptional circumstances such an interruption may be legal but only subject to three strict conditions: it must be essential to deal with particularly serious events; there must be no technical alternatives that affect rights and freedoms to a lesser extent; and the suspension must be strictly limited in duration to the time required to identify and implement alternative measures. In this case, the Conseil d'État ruled that the Prime Minister's decision to suspend access to TikTok in New Caledonia in May 2024 did not meet all these conditions.
In response to severe public order disturbances in New Caledonia in May 2024, the government first declared a state of emergency and then suspended access to the TikTok social network, citing exceptional circumstances. Two organisations and a number of individuals challenged this second decision before the Conseil d'Etat.
A state of emergency and the theory of exceptional circumstances can be applied concurrently when the situation demands it.
The Conseil d'Etat stated that, according to over a century of jurisprudence established during the First World War, the occurrence of "exceptional circumstances" allows the administrative authority to take the measures required to deal with the situation at hand as a matter of urgency when it is impossible to act in accordance with the standards in force, provided that such measures are essential. The measures are subject to review by an administrative judge.
The Conseil d'État clarified that while the declaration of a state of emergency, as per the law of 3 April 1955, grants the administrative authority specific powers, it does not preclude reliance on the theory of exceptional circumstances. This allows the authority to adopt measures beyond those provided by ordinary law or the state of emergency regime when neither is sufficient to address the immediate needs of the situation.
In principle, a social network can only be shut down in cases provided for by law, given the infringement of essential freedoms. However, it may be done in exceptional circumstances subject to strict conditions.
The Conseil d'État emphasised that, in principle, an administrative authority may only suspend access to an online public communication service if the law so provides. This restriction reflects the significant impact such a measure has on fundamental rights and freedoms (including freedom of expression, the free exchange of ideas and opinions, the right to private and family life and the freedom of trade and industry).
However, even when not provided for by law, an interruption may be possible if exceptional circumstances make it essential. In such cases, the ban can only be legally imposed on a temporary basis, provided that no immediate technical alternatives exist that would have a lesser effect on rights and freedoms than a complete shutdown. Additionally, the ban must not exceed the time strictly necessary to identify and implement such alternative measures.
The Conseil d'État also noted that while the law of 3 April 1955 on the state of emergency grants the Minister of the Interior the authority to suspend any online public communication service that incites or glorifies acts of terrorism, this does not preclude the possibility of an interruption for other reasons in exceptional circumstances.
Some of the conditions were not met in this case.
The Conseil d'État ruled that the situation in New Caledonia, characterised by particularly violent riots resulting in many fatalities and, more broadly, injuries and damage to property, effectively constituted exceptional circumstances.
The Prime Minister, recognising the role of TikTok in the rapid spread of the disturbances due to the algorithms employed by the platform, was justified in issuing a temporary suspension of access to the service given the lack of immediately available alternative technical measures. However, such a measure could only be legally implemented on the condition that its duration was explicitly limited to the time necessary to identify and, where appropriate, implement alternative measures, potentially in collaboration with the service provider, such as restricting certain functions, rather than imposing a complete shutdown.
However, the Prime Minister decided to suspend the service for an indefinite period solely because of continuing public order problems, without making its continuation contingent on the impossibility of implementing alternative measures. On these grounds, the Conseil d'Etat ruled that the blocking of TikTok in May 2024 was unlawful as it disproportionately infringed the rights and freedoms invoked by the applicants.
Read the decision (in French)