In a recent ruling on 1 April 2025, the Conseil d’État criticised the decision of the French Prime Minister, which had led to the interruption of access to the social media platform TikTok in New Caledonia on 14 May 2024. This interruption was in effect until 29 May 2024. The ruling examined the conditions under which the government can legitimately interfere with access to a social network. This decision was made in close temporal proximity to the declaration of an "état d'urgence” in New Caledonia by the Council of Ministers (5 May 2024), which was terminated a dozen days later.

The Conseil d’État initially emphasised the capacity of the Administrative Authority to implement urgent measures in exceptional circumstances, particularly when conventional instruments are ineffective, on the condition that these measures are deemed indispensable and subject to the oversight of the administrative judge. Concurrently, it emphasised the significance of freedom of expression and communication, as delineated in Article 11 of the 1789 Declaration of the Rights of Man and of the Citizen, underscoring that, in the digital era, this encompasses the liberty to access and express oneself through online communication services, which have evolved into indispensable instruments for democratic, economic and social engagement. The judgment elucidated that the interruption of an online communication service is admissible for the Administrative Authority exclusively in "circumstances exceptionnelles” and if indispensable to address the "nécessités du moment”. Such interruption must also be proportionate. The implementation of total blocking is permissible only in the absence of less invasive technical alternatives, and for a duration strictly limited to the time necessary to identify and implement them.

In this particular instance, the Conseil d’État acknowledged the severity of the disturbances in New Caledonia and evaluated the legitimacy of the Prime Minister's intervention on TikTok. It was specified that the legislation of 3 April 1955, which endows the Minister of the Interior with the prerogative to disrupt online communication services in instances of incitement to terrorism, did not obviate the Prime Minister's capacity to undertake such actions for alternative reasons, in consideration of the gravity of the circumstances, provided that no alternative efficacious measures were stipulated by law or common law. Consequently, the objections pertaining to the absence of legal basis and jurisdiction of the Prime Minister were dismissed, as was the argument that restrictions on freedom of expression must be exclusively provided for by law. This was due to the established case law that admits the action of the Administrative Authority in exceptional circumstances. In addressing the proportionality of the measure, the Conseil d’État acknowledged that TikTok had been used to disseminate content that incited violence, thus contributing to the aggravation of the disturbances. In light of the circumstances, and given the unavailability of alternative technical instruments, the Prime Minister was within his rights to determine a provisional cessation in service provision. Nevertheless, the decision was regarded as excessive, as it entailed a complete cessation in service for an indefinite period, in conjunction with the ongoing disturbances, without giving due consideration to the implementation of alternative, less restrictive measures, such as the restriction of specific service functionalities.

In conclusion, the judgment in question reiterates the importance of freedom of expression and communication, especially in the context of modern online communication tools, recognizing the essential role of these services in democratic, economic and social life. Notwithstanding the possibility of the Administrative Authority imposing limitations on access to these services in exceptional circumstances, such action must be executed with the utmost prudence. It is imperative that any restriction imposed is proportionate, temporary, and strictly necessary in order to respond to specific, contingent needs. Furthermore, such restrictions must be subject to the control of the administrative judge.

 

(Comment by Laura Restuccia)