This Tuesday at 11:30 a.m., the highest administrative court examines several appeals against the ban on the social network in the archipelago. A measure that the government now justifies by the legal theory of “exceptional circumstances”, which allows it to free itself from ordinary legality.
The measure, unprecedented in a European country, had provoked many questions – to put it mildly – among public law specialists: on what legal basis did the government rely to announce, Wednesday May 15 evening, the cut off access to TikTok in New Caledonia, shaken by violent riots? According to the site vie-publique.fr, published by the Directorate of Legal and Administrative Information, attached to Matignon, it is within the framework of the state of emergency, declared in the archipelago by Emmanuel Macron, that This blockage was decided. However, if this state of exception allows the Minister of the Interior to interrupt a “online public communication service”it is only in the case of condoning acts of terrorism or provocation to commit them.
While the Council of State must examine this Tuesday, May 21 at the end of the morning several appeals against the ban on TikTok, the government, in its defense brief that Release was able to consult, now justifies the measure not under the state of emergency, but in the name of the jurisprudential theory of “exceptional circumstances”which wants the administration, in the event of serious and unforeseen events, to be able to act outside the confines of ordinary legality.
Appeals from associations and residents
At the very least, a certain vagueness reigned until now on the subject. When announcing the blocking of the social network in the overseas archipelago, the Prime Minister was not very forthcoming, simply indicating that the High Commissioner of the Republic in New Caledonia, Louis Le Franc, had “banned TikTok”. Questioned the next day by the site NumeramaGabriel Attal’s cabinet had highlighted the “interference and […] the manipulation of the platform whose parent company is Chinese.
Friday May 17, two associations, the Human Rights League and Quadrature du Net, as well as three citizens residing or present in New Caledonia, represented by lawyer Vincent Brengarth, attacked in summary proceedings this ban on TikTok, jointly denouncing a “serious and manifestly illegal attack” to freedom of expression and communication. Both the Quadrature du Net appeal, available online, and that of the three New Caledonians, consulted by Releasecontest the legality of the decision with regard to the provisions of the state of emergency.
“If the events currently taking place in New Caledonia are particularly serious, it must be noted that they cannot in any way be qualified as terrorist acts”, underlines the residents’ summary. Same argument from the association for the defense of freedoms on the Internet, which also emphasizes that the fight against disinformation and interference is not a reason for blocking provided for by law, and that in any case, a measure of this type would be disproportionate with regard to such an objective.
“Insurgent context”
But from now on, there is no longer any question of justifying the banning of the social network due to foreign interference: it only aims to return to public order. TikTok, explains Matignon, was used by the rioters to “organize in real time”, “increase the impression of chaos and disorder by broadcasting images of their misdeeds” And “allow the reuse of content in the context of deceptive manipulation operations”. Therefore, the Prime Minister’s services are moving forward, “there is a direct link between the use of TikTok and the riots”. And “taking into account the insurrectional context”the blocking measure is, for the government, “legally based on the theory of exceptional circumstances”.
According to this jurisprudential theory, which dates back to the First World War, the administration can free itself, in periods of crisis, from existing law; borne by the administrative judge, who “controls the actions taken within the framework of this theory”to assess whether there is indeed “exceptional circumstances”and to ensure that decisions “were made necessary”, explains the Council of State on its site. Put another way : “Necessity is law”summarized with Release Nicolas Hervieu, lawyer specializing in rights and freedoms and professor at Sciences-Po.
Two exceptional regimes
THE “exceptional circumstances” have thus been retained on several occasions by the Council of State, including during riots in New Caledonia in 1985, but also, much more recently, in 2021, to validate the expansion of the health pass ahead of the vote of the law. The problem with such a notion, obviously, is what it can put in place: in particular, underlines the jurist, in terms of unprecedented restrictions on freedoms.
Especially since this account overlaps – even more than in 2021, when France was in a transitional period of “exit from a state of health emergency” – two exceptional regimes in the present case: the state of emergency, standardized by law, and the “exceptional circumstances”, which operate by legalization a posteriori by the administrative judge. The latter can, therefore, make it possible to do what the first had not planned. “If we follow this logic, decisions as invasive as blocking a social network can be taken without legal basis and without legal guarantee”, warns Nicolas Hervieu. It now remains to be seen whether or not the Council of State will choose to follow the executive in this direction.
