In 2024, amidst social unrest, the French government banned TikTok in Kanaky-New Caledonia. In April 2025, the Council of State reviewed the ban. This post examines the implications of the judgment through the lens of the legal doctrine on emergency powers – particularly its impact on the separation of powers – and situates it within the broader context of Kanaky-New Caledonia’s ongoing decolonization process from France. On the one hand, the consequences of this decision reach far beyond the possible restrictions on social media since it has the potential to exponentially broaden the emergency powers of the executive and undermine the rule of law. On the other hand, both the ban and its judicial review highlight and perpetuate the longstanding French tradition of experimenting with emergency powers to control the colonies and their populations.
Through referendums and “riots”
Within the framework of Kanaky-New Caledonia’s decolonization process, the 1998 Nouméa Agreement established a plan for three successive referendums on independence. It also froze the composition of the electoral body, meaning that only New Caledonian citizens who had been residing in Kanaky-New Caledonia before 1998 and their descendants are allowed to vote for the local parliament.
In 2021, the last of the three referendums returned a majority against independence. Pro-independence groups had boycotted the referendum. This last referendum put an end to the Nouméa Agreement and opened a period of uncertainty regarding the status of the territory and its population. In May 2024, the French National Assembly passed a constitutional bill “unfreezing” the composition of the electoral body, which sparked protests and violent clashes.
In response, the state of emergency was declared, and the French Prime Minister banned all access to TikTok in Kanaky-New Caledonia. He grounded his decision in the old “exceptional circumstances” theory, which allowed the executive to adopt measures in the absence of any legal basis but due to the exceptionality of the factual circumstances, subjected only to a posteriori judicial review.
Several NGOs and individuals filed petitions against the ban. On 1st April 2025, the French Council of State reviewed this decision and delivered a ruling that could fundamentally reshape emergency powers under French law. While the Council annulled the TikTok ban on proportionality grounds, it nonetheless confirmed the admissibility of the “exceptional circumstances” doctrine, even when other legal emergency frameworks have been triggered.
The revival of the “exceptional circumstances” theory
The “exceptional circumstances” theory goes back to World War I when the Council of State found that “because of the conditions under which, at that time, the public powers were in fact exercised” the President could suspend the application of a law (no. 63412, 28 June 1918, Heyriès). The same theory was used again during WWII but then fell into disuse. Since then, various legal developments established a framework – and imposed limits – for the exercise of emergency powers.
In the midst of the Covid-19 outbreak, the French Parliament adopted a law suspending the time limits for adjudicating constitutionality questions. This statute was enacted within 24 hours in clear violation of the constitutional provision which requires a minimum two-week delay between the introduction of such a bill and its vote by parliament. The Constitutional Council shook the world of French public law doctrine when it relied on “the particular circumstances of the case” to declare the law constitutional despite the clear irregularity and without further explanation (no. 2020-799 DC, 26 March 2020, §§ 3 and 5). Whether this decision created a constitutional version of the “exceptional circumstances” theory continues to divide the literature but the decision was generally considered to be an outlier. (Champeil-Desplats 2020; Charité 2020)
Therefore, it came as a surprise when the Prime Minister called on this old theory to justify its decision to prevent all access to TikTok in Kanaky-New Caledonia in 2024.
What about the separation of powers?
Under France’s 1955 state of emergency law, the Parliament had authorized the executive to restrict access to social media – but only in cases involving incitement to, or advocacy of, terrorism. The TikTok ban, however, was imposed without such justification, exceeding the extraordinary powers conferred by the legislature.
Despite this, the Council of State validated the concurrent use of both the state of emergency and “exceptional circumstances” theory. In doing so, it effectively endorsed the idea that even after the Parliament had acknowledged the emergency and granted extraordinary executive powers accordingly, the executive can still unilaterally expand its power and grant itself further prerogatives.
Under judicial control…
The sole remaining check on these extraordinary powers lies with the one who created them in the first place, namely the administrative judge. Consequently, the Council of State’s decision resembles the consecration of an oxymoronic extralegal model under judicial review. But the effectiveness of this control is questionable. Although the Council annulled the TikTok ban, it did so eleven months after the two-week ban had expired – offering little remedy for the severe infringement of rights and freedoms that had already occurred. This delay could have been mitigated through urgent procedures. Yet, paradoxically, in flagrant contrast to the exceptional circumstances and emergency context, the Council of State concluded that the urgency condition had not been met and declined to take immediate action.
The ultimate Pyrrhic victory
The Council of State took the opportunity to clarify the conditions under which the “exceptional circumstances” theory could justify the ban of a social media. A decisive factor is the absence of legal or less restrictive alternatives. Consequently, the duration of such a ban must not exceed the time required to identify and implement these alternatives.
This was precisely where the TikTok ban failed. The Prime Minister had tied the length of the ban to the restoration of public order rather than to identifying less restrictive solutions, such as disabling specific app functions. As a result, although the Council annulled the ban, the ruling offered no real remedy, nor did it prevent future bans – it merely restricted their duration.
Quid of the ECHR?
The question of whether the TikTok ban complies with the European Convention on Human Rights (ECHR) remains open. The issue is particularly significant because France did not trigger Article 15 ECHR, which permits states to derogate from certain rights in times of emergency – a fact that further signals the erosion of the derogation model. The Council of State limited its considerations to the existence of a “legal basis”. It merely stated that the exceptional powers resulted from a well-established case law which constituted a sufficiently foreseeable legal basis under the ECHR and ICCPR.
The well-established character of a jurisprudence that had rarely been used since WWII might seem far-fetched to the European judges who require strict scrutiny and effective judicial review when it comes to prior restraints on access to social media. (Cengiz and Others v. Turkey, no. 48226/10 and 14027/11, §62, 1st December 2015) That said, the ECtHR has shown a tendency to justify exceptional measures on the basis of the “circumstances of the case” – even in the absence of a formal derogation – and it has historically been lenient toward France in cases involving emergency powers. These elements combined might tip the balance in favor of the deference that the French institutions seem to expect.
Exceptional circumstances: riots or decolonial struggle?
The rights at stake were particularly significant in these (exceptional) circumstances. The Council of State itself acknowledged that freedom of expression encompasses the freedom to access and communicate through online public communication platforms (nos 494511, 494583, 495174, 1st April 2025, § 6). It added that freedom of expression and communication is all the more precious because its exercise is a condition of democracy and a safeguard for other rights and freedoms (idem, §5).
It is therefore essential to scrutinize the circumstances that justified the ban. The Council described the situation as a “a period of exceptionally serious public order disturbances” characterized by riots. It also alluded, albeit briefly, to the political context: the parliamentary debate on a constitutional amendment modifying the electoral roll. Yet the so-called “context of violence” is deeply intertwined with Kanaky–New Caledonia’s long decolonization process. The territory has been on the United Nations’ list of Non-Self-Governing Territories in 1946-47 and again since 1986. The constitutional amendments voted by the French parliament in May 2024 aimed to “unfreeze” the electoral body, affecting the proportion of Kanak – indigenous people of Kanaky-New Caledonia – on the electoral roll. (Amnesty International 2024)
The TikTok ban thus severely restricted freedom of expression at a crucial moment in the struggle for self-determination. It undermined democratic safeguards precisely when the most basic democratic question was being debated: Who gets to vote?
The enduring colonial anatomy of emergency powers
Historically, French colonies have been grounds for experimentation and implementation of emergency powers. The 1955 state of emergency law was enacted to address the war in Algeria and was repeatedly invoked until Algeria gained its independence in 1962. Its only other implementation came in 1985 in Kanaky-New Caledonia before, in a classic boomerang effect, it was used in the “metropole”.
In 2005, the state of emergency was declared to address riots that had broken out in the suburbs of several metropolitan cities – areas characterized by a higher concentration of residents of immigrant origin. In 2015-2017, it was extended to the whole metropolitan territory and even then, it disproportionately affected Muslims.(Hennette-Vauchez 2018)
It seems that the French institutions are once again prepared to depart from the rule of law standards in order to maintain the domination exercised by the metropole over its colonies and their populations or their descendants.
By endorsing the principle of a complete social media blackout during periods of unrest, the Council’s decision not only echoes authoritarian practices but also paves the way for the proliferation of new, loosely regulated exceptional powers – in a country that already counts many and relies on them at an alarming rate.