New Caledonia: the Council of State “does not suspend the blocking of TikTok”

Requested by associations and individuals, the judge of the Council of State has ruled and does not suspend the blocking of TikTok in New Caledonia. The Human Rights League, Quadrature du Net and three residents of New Caledonia filed an appeal for interim relief on May 17, considering that this blockade, decided by the government on May 15, seriously undermined the rights of freedoms of communication and information.

The administration judged that they did not provide enough evidence demonstrating that this blockage has immediate and concrete consequences on their situation and their interests. However, this is an emergency condition necessary to allow the intervention of the summary judge. “In this case, the applicants limit themselves to maintaining that there is an attack on freedom of expression and communication, but do not provide any evidence justifying the urgency”, thus details, in its decision, the Council of State.

Furthermore, the Council of State considered that the suspension of TikTok is limited to an exceptional situation, which “focuses on the restoration of public security and tranquility.” And to add that the government has “committed to immediately lifting this blockage as soon as the unrest has ceased”. Finally, the administration also recalls that other means of “communication and information” are, for the moment, not affected.

Different reasons for which the judge of the Council of State took the decision, taking into account the public interest represented by the return of security in New Caledonia, to reject the request for suspension of blocking of TikTok in the territory .

For the applicants, however, the decision is worrying. “In 2024, it is therefore possible to cut off a social network over an entire territory,” commented La Quadrature du Net, the association for the defense of rights and freedoms on the internet, which was one of the applicants, in a tweet. “While it is the main means of communication for a part of the population, in this case young people, without proof or reason provided and the Council of State sees nothing urgent in it,” continues the association.

La Quadrature du Net even believes that the Council of State implicitly validates “the authoritarian reflex of Macron and Attal to attack the means of communication during moments of crisis. The state of our institutions’ considerations for fundamental freedoms is terrifying,” he concludes. For his part, the lawyer for the New Caledonian applicants criticizes a “dismaying” decision which does not meet the challenges. Given the use of the social network and the unprecedented nature of this measure, it is unthinkable to consider that the emergency is not characterized,” declared Maître Vincent Brengarth.

During a heated hearing on Tuesday, the government representative highlighted “the strong match” of the profile and age of the rioters with those of the users of the platform, in order to justify its blocking, which must last until return to calm. The applicants unanimously denounced “the absence of concrete elements which proved the alleged link between the use of TikTok and the violence”, in particular extracts of content from the social network. The emergency judge granted an additional 24 hours to the government to add evidence to the file, for example screenshots. The associations also pointed out the lack of a solid legal basis and the disproportionate nature of the blockage.

Unable to resort to the law of April 3, 1955 relating to the state of emergency, which only allows the blocking of a site or a network in the event of provocation “to the commission of acts of terrorism or in making the apology”, the government based itself on the “theory of exceptional circumstances”, jurisprudence allowing the administration to free itself from the law in times of crisis, the use of which was validated by the Council of Status during the Covid-19 pandemic. This measure to ban the social network also came against a backdrop of fear of interference and disinformation on social networks from foreign countries which would seek to stir up tensions, government and security sources had further justified, mentioning China or the ‘Azerbaijan.

Since May 13, the violence has caused the death of six people, including two mobile gendarmes, as well as the destruction and looting of numerous buildings and businesses. A return to normal life has begun in the center of Nouméa, patrolled by a strong police presence.