In 2024, amidst social unrest, the French authorities banned TikTok in Kanaky-New Caledonia. In April 2025, the Council of State reviewed the ban. This put up examines the implications of the judgment by means of the lens of the authorized doctrine on emergency powers – significantly its impression on the separation of powers – and situates it throughout the broader context of Kanaky-New Caledonia’s ongoing decolonization course of from France. On the one hand, the implications of this determination attain far past the potential restrictions on social media because it has the potential to exponentially broaden the emergency powers of the chief and undermine the rule of legislation. Alternatively, each the ban and its judicial evaluation spotlight and perpetuate the longstanding French custom of experimenting with emergency powers to regulate the colonies and their populations.
Via referendums and “riots”
Inside the framework of Kanaky-New Caledonia’s decolonization course of, the 1998 Nouméa Settlement established a plan for 3 successive referendums on independence. It additionally froze the composition of the electoral physique, that means that solely New Caledonian residents who had been residing in Kanaky-New Caledonia earlier than 1998 and their descendants are allowed to vote for the native parliament.
In 2021, the final of the three referendums returned a majority towards independence. Professional-independence teams had boycotted the referendum. This final referendum put an finish to the Nouméa Settlement and opened a interval of uncertainty concerning the standing of the territory and its inhabitants. In Might 2024, the French Nationwide Meeting handed a constitutional invoice “unfreezing” the composition of the electoral physique, which sparked protests and violent clashes.
In response, the state of emergency was declared, and the French Prime Minister banned all entry to TikTok in Kanaky-New Caledonia. He grounded his determination within the outdated “distinctive circumstances” principle, which allowed the chief to undertake measures within the absence of any authorized foundation however because of the exceptionality of the factual circumstances, subjected solely to a posteriori judicial evaluation.
A number of NGOs and people filed petitions towards the ban. On 1st April 2025, the French Council of State reviewed this determination and delivered a ruling that might basically reshape emergency powers underneath French legislation. Whereas the Council annulled the TikTok ban on proportionality grounds, it nonetheless confirmed the admissibility of the “distinctive circumstances” doctrine, even when different authorized emergency frameworks have been triggered.
The revival of the “distinctive circumstances” principle
The “distinctive circumstances” principle goes again to World Conflict I when the Council of State discovered that “due to the situations underneath which, at the moment, the general public powers have been in actual fact exercised” the President might droop the applying of a legislation (no. 63412, 28 June 1918, Heyriès). The identical principle was used once more throughout WWII however then fell into disuse. Since then, numerous authorized developments established a framework – and imposed limits – for the train of emergency powers.
Within the midst of the Covid-19 outbreak, the French Parliament adopted a legislation suspending the closing dates for adjudicating constitutionality questions. This statute was enacted inside 24 hours in clear violation of the constitutional provision which requires a minimal two-week delay between the introduction of such a invoice and its vote by parliament. The Constitutional Council shook the world of French public legislation doctrine when it relied on “the actual circumstances of the case” to declare the legislation constitutional regardless of the clear irregularity and with out additional clarification (no. 2020-799 DC, 26 March 2020, §§ 3 and 5). Whether or not this determination created a constitutional model of the “distinctive circumstances” principle continues to divide the literature however the determination was usually thought of to be an outlier. (Champeil-Desplats 2020; Charité 2020)
Subsequently, it got here as a shock when the Prime Minister referred to as on this outdated principle to justify its determination to stop all entry to TikTok in Kanaky-New Caledonia in 2024.
What in regards to the separation of powers?
Beneath France’s 1955 state of emergency legislation, the Parliament had approved the chief to limit entry to social media – however solely in instances involving incitement to, or advocacy of, terrorism. The TikTok ban, nevertheless, was imposed with out such justification, exceeding the extraordinary powers conferred by the legislature.
Regardless of this, the Council of State validated the concurrent use of each the state of emergency and “distinctive circumstances” principle. In doing so, it successfully endorsed the concept that even after the Parliament had acknowledged the emergency and granted extraordinary government powers accordingly, the chief can nonetheless unilaterally increase its energy and grant itself additional prerogatives.
Beneath judicial management…
The only real remaining test on these extraordinary powers lies with the one who created them within the first place, particularly the executive decide. Consequently, the Council of State’s determination resembles the consecration of an oxymoronic extralegal mannequin underneath judicial evaluation. However the effectiveness of this management is questionable. Though the Council annulled the TikTok ban, it did so eleven months after the two-week ban had expired – providing little treatment for the extreme infringement of rights and freedoms that had already occurred. This delay might have been mitigated by means of pressing procedures. But, paradoxically, in flagrant distinction to the distinctive circumstances and emergency context, the Council of State concluded that the urgency situation had not been met and declined to take fast motion.
The final word Pyrrhic victory
The Council of State took the chance to make clear the situations underneath which the “distinctive circumstances” principle might justify the ban of a social media. A decisive issue is the absence of authorized or much less restrictive options. Consequently, the length of such a ban should not exceed the time required to determine and implement these options.
This was exactly the place the TikTok ban failed. The Prime Minister had tied the size of the ban to the restoration of public order relatively than to figuring out much less restrictive options, resembling disabling particular app features. Consequently, though the Council annulled the ban, the ruling supplied no actual treatment, nor did it forestall future bans – it merely restricted their length.
Quid of the ECHR?
The query of whether or not the TikTok ban complies with the European Conference on Human Rights (ECHR) stays open. The difficulty is especially vital as a result of France didn’t set off Article 15 ECHR, which allows states to derogate from sure rights in occasions of emergency – a proven fact that additional alerts the erosion of the derogation mannequin. The Council of State restricted its issues to the existence of a “authorized foundation”. It merely acknowledged that the distinctive powers resulted from a well-established case legislation which constituted a sufficiently foreseeable authorized foundation underneath the ECHR and ICCPR.
The well-established character of a jurisprudence that had not often been used since WWII may appear far-fetched to the European judges who require strict scrutiny and efficient judicial evaluation in relation to prior restraints on entry to social media. (Cengiz and Others v. Turkey, no. 48226/10 and 14027/11, §62, 1st December 2015) That stated, the ECtHR has proven a bent to justify distinctive measures on the premise of the “circumstances of the case” – even within the absence of a proper derogation – and it has traditionally been lenient towards France in instances involving emergency powers. These components mixed would possibly tip the steadiness in favor of the deference that the French establishments appear to count on.
Distinctive circumstances: riots or decolonial wrestle?
The rights at stake have been significantly vital in these (distinctive) circumstances. The Council of State itself acknowledged that freedom of expression encompasses the liberty to entry and talk by means of on-line public communication platforms (nos 494511, 494583, 495174, 1st April 2025, § 6). It added that freedom of expression and communication is all of the extra valuable as a result of its train is a situation of democracy and a safeguard for different rights and freedoms (idem, §5).
It’s subsequently important to scrutinize the circumstances that justified the ban. The Council described the state of affairs as a “a interval of exceptionally severe public order disturbances” characterised by riots. It additionally alluded, albeit briefly, to the political context: the parliamentary debate on a constitutional modification modifying the electoral roll. But the so-called “context of violence” is deeply intertwined with Kanaky–New Caledonia’s lengthy decolonization course of. The territory has been on the United Nations’ checklist of Non-Self-Governing Territories in 1946-47 and once more since 1986. The constitutional amendments voted by the French parliament in Might 2024 aimed to “unfreeze” the electoral physique, affecting the proportion of Kanak – indigenous folks of Kanaky-New Caledonia – on the electoral roll. (Amnesty Worldwide 2024)
The TikTok ban thus severely restricted freedom of expression at a vital second within the wrestle for self-determination. It undermined democratic safeguards exactly when essentially the most primary democratic query was being debated: Who will get to vote?
The enduring colonial anatomy of emergency powers
Traditionally, French colonies have been grounds for experimentation and implementation of emergency powers. The 1955 state of emergency legislation was enacted to deal with the conflict in Algeria and was repeatedly invoked till Algeria gained its independence in 1962. Its solely different implementation got here in 1985 in Kanaky-New Caledonia earlier than, in a traditional boomerang impact, it was used within the “metropole”.
In 2005, the state of emergency was declared to deal with riots that had damaged out within the suburbs of a number of metropolitan cities – areas characterised by a better focus of residents of immigrant origin. In 2015-2017, it was prolonged to the entire metropolitan territory and even then, it disproportionately affected Muslims.(Hennette-Vauchez 2018)
It appears that evidently the French establishments are as soon as once more ready to depart from the rule of legislation requirements so as to preserve the domination exercised by the metropole over its colonies and their populations or their descendants.
By endorsing the precept of an entire social media blackout during times of unrest, the Council’s determination not solely echoes authoritarian practices but additionally paves the best way for the proliferation of recent, loosely regulated distinctive powers – in a rustic that already counts many and depends on them at an alarming fee.
