TikTok censorship in New Caledonia: a review of a democratic failure

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On 23 May 2024, the Conseil d’État rejected a request from La Quadrature du Net for an interim ruling against the blocking of TikTok in New Caledonia. To justify this unfair decision, the court stated that there was no urgency for a ruling, since the blocking would soon cease, according to the government. It took more than 24 hours after the end of the state of emergency for the social network to become accessible again. This episode marks a milestone in the rise of authoritarianism in France and the failure of our institutions to prevent it.

The Prime Minister’s lies

When we started our legal action in mid-May, we could not have imagined such a one-sided arbitrariness. On 15 May, the Prime Minister announced the blocking of TikTok at the same time as he announced the entry into force of the state of emergency across New Caledonia. Lawyers and journalists then considered that the order to block the service could only have been made in application of a provision of the law on the state of emergency, which allows the Minister of the Interior to block “any online public communication service provoking the commission of acts of terrorism or glorifying them”. In reality, the blocking measure was justified on a different legal basis. The government deliberately kept quiet about it, maintaining confusion and opacity while La Quadrature and other associations were challenging it.

At the same time, on 16 May, the government quickly leaked an alternative message to the press: the blocking of TikTok would be justified as a result of foreign interference by Azerbaijan. In reality, while Azerbaijan has wanted to take advantage of the tensions in New Caledonia for several months, no disinformation operation was launched on TikTok. And it was the Prime Minister’s own staff who said so, in a note drawn up by Viginum, a department reporting to the Prime Minister responsible for studying foreign interference operations online.

On these two points, the Prime Minister was confronted with his dishonesty and lies when his staff had to justify the measure before court. In the brief sent to the Conseil d’État, it was revealed that the legal basis for the blockade was not the state of emergency, but the ‘theory of exceptional circumstances’, which consists of allowing derogations from certain rules of law in very exceptional cases. Accepted by judges a century ago, this theory is in a way the forerunner of the state of emergency, but not based on a formal law. The 1955 law, conceived in the colonial context of the Algerian war, then took over with a precise framework. As noted during the hearing, this is the first time that these two exceptional regimes have been invoked at the same time. Behind this unprecedented legal situation, it is clear that the government did not know what it was doing and had decided to block the social network before determining its legal justification. This was confirmed by the press: at the end of May, La Lettre revealed that, behind the scenes, the government made an agreement with TikTok so that the platform would not challenge in court the blocking decision, which the former was unable to legally justify.

However, this theory of ‘exceptional circumstances’ does not allow online freedom of expression to be sacrificed for the sake of more security. Before the Conseil d’État, the Prime Minister justified the banning of TikTok on the grounds of allegedly violent content or content inciting violence. On 20 May, his staff wrote to the Conseil d’État that ‘the organisation of these acts of violence was largely facilitated by the use of social networks, and particularly, due to its specific characteristics, by the social network “TikTok”’. But when the government was ordered by the Conseil d’État to provide proof of this allegedly problematic content, it produced only screenshots… of legal content.
The examples chosen to illustrate the need for censorship were in fact only videos denouncing police violence and the organisation of civil militias. In short, political expressions which were more or less radical, criticizing the situation, but in no way calling for violence. The Prime Minister’s office shamelessly admitted at the hearing that TikTok had been chosen because ‘the profile of the rioters matched the profile of the users’, i.e. young people. In this straightforward way, the government assumed that it wanted to gag the speech and expression of Kanak youth, even though what was denounced in the incriminating videos at the time turned out to be true: in recent days the press has revealed cases of police violence, the complicity of the police with the militias, or even a racist attack on a Kanak policeman.

Finally, the government went further in its falsehood when it assured the Conseil d’État, in a brief dated 22 May, that the blocking measure would not last. It promised to end the ban when “developments in the situation in New Caledonia make it possible to consider ending the measure”, even suggesting that this could happen “before the reading of the ruling”. In reality, we had to wait more than 24 hours after the state of emergency was ended in New Caledonia for TikTok to be accessible again.

The Conseil d’État as an ally of the government

It was this last lie about the end of the state of emergency that seemed to help the Conseil d’Etat not to sanction the government, and therefore not to order it to restore access to TikTok. In order for the judge to take an interim order, even before considering the illegality of the situation, it is necessary to justify the emergency to act. It could be argued that blocking a major online communications platform throughout New Caledonia (population 270,000) for an indefinite period of time is a sufficiently urgent situation. This was one of the arguments put forward by the lawyers present at the hearing, who pointed out that such a blockade was entirely new to France and even to the European Union. The Conseil d’Etat has also been less rigorous in the past: in 2020, when we asked it to stop the Paris Police Prefecture’s drones from flying, again by filing an application for interim measures, it found that there was indeed an urgent need to rule.

But for TikTok, the judge preferred to put himself in a situation where he did not need to respond to the merits of the case: In his decision, he considers that “the plaintiffs provide no evidence to characterise the emergency to require an interim measure”, and specifies, to affirm that there is no emergency, that “the contested decision involves the blocking of a single social network in the territory of New Caledonia, with all other social networks and means of communication, the press, television and radio being in no way affected”. This is an impressive demonstration of the lack of understanding of what social networks represent today and how information is shared online. In particular, the Conseil d’Etat forgets that the European Court of Human Rights (ECtHR) considers that blocking an entire online platform is equivalent to preventing a newspaper from being published or an audiovisual medium from broadcasting. Here, our institutions are giving the impression that they are not trying to understand the reality of the Internet and are de facto minimising the harm caused by this blocking.

To emphasise the lack of urgency, the judge concluded by repeating the government’s dishonest promise: “this blocking measure must end very quickly, the government having undertaken, as set out in its final written brief, to immediately withdraw the blocking measure as soon as the troubles that justified it have ceased”. It has therefore left the situation untouched, giving the government discretionary power over the date on which the platform will be reinstated.

A harsh conclusion can therefore be drawn: in France, as in Russia and Turkey, the government can block a social network with a single press of a button, without the judicial system being able to stop it. While the Conseil d’Etat could have sent out a strong message and played its role as a counter-power, it came to the government’s rescue by accepting an unprecedented and totally disproportionate attack on freedom of expression and information.

Don’t let it be

Although the blocking of TikTok has been withdrawn, the political and legal precedent now exists. We believe that everything must be done to ensure that this does not happen again and remains an isolated case. Whether by the European Court of Human Rights or the Human Rights Committee of the United Nations, this type of censorship is unanimously disapproved. We cannot therefore allow the Conseil d’État to be satisfied with this blockage and must demand that it reaffirm the law and sanction the government.

That’s why last week we challenged once again this decision, this time through a classic, but longer, legal procedure. Such an action will take one to two years to be ruled on, and we hope that the Conseil d’Etat will wake up and confirm that the censorship was illegal. When it banned TikTok, the government faced no obstacles, no safeguards, and never had to justify its decision. The only opposition it faced was the legal action taken by associations and civil society. The failure that resulted is further proof of the increasingly flagrant failure of democratic mechanisms.

For many years, we have been witnessing the progressive collapse of the rule of law in France. We note that the increasingly authoritarian policies of successive governments, and in particular those of Emmanuel Macron, are not facing any major institutional obstacles. We will not hide our concerns about this, but we will continue to take action. If you can, please consider helping us by making a donation.