France’s TikTok ban in New Caledonia raises legality, effectiveness questions

6 months ago 19

Experts are questioning the legality and effectiveness of France’s ban of TikTok in New Caledonia, imposed on Wednesday (15 May) to contain widespread protests that rocked the French overseas territory in the South Pacific.

The app ban was presented by the French government as complementary to the state of emergency, declared on Wednesday, and the deployment of armed forces in the overseas territory.

Protests erupted before a bill was passed in the National Assembly to revise New Caledonia’s body of people entitled to vote in provincial elections, allowing residents who have lived in the territory for over 10 years to vote. Independentists have been criticising this measure saying it would dilute the vote of the indigenous Kanak people.

According to the High Commission’s official count on Thursday (16 May), more than 200 rioters have been arrested and 64 law enforcement officers were injured in the past three days. Five people have been killed, according to the latest estimates.

According to the French government, messages of hate and calls for violence have been circulating on TikTok.

“This (unprecedented…) measure is related to the state of emergency regime. But the legality of this decision by the Ministry of the Interior, announced by (Prime Minister) Gabriel Attal, is questionable. Because the link with terrorism is more than doubtful…,” European law expert Nicolas Hervieu wrote on X.

TikTok did not answer Euractiv’s request for comment by the time of publication.

The digital rights NGO Access Now asked for an immediate lift of the ban, explaining that it “doesn’t quell riots [but] simply suppresses dissent, blatantly violating fundamental rights.”

In July 2023, as riots shook metropolitan France in the wake of the killing of a teenager by a police officer, President Emmanuel Macron suggested that social media could be cut when protests get out of control.

Legality

As a French overseas territory, New Caledonia is not an EU outermost region where Brussels-made laws apply just like in continental Europe. Instead, New Caledonia is linked to the European Union through an Overseas Association Decision, according to the European External Action Service website.

As a result, the EU’s landmark content moderation legislation, the Digital Services Act, which prevents France from banning TikTok on its territory, does not apply to the South Pacific island.

However, under French law, the minister of the interior can interrupt all communication services which promote terrorism. The basis is a 1955 law, revised in 2015 in the wake of terrorist attacks in France.

But the TikTok activity does not necessarily fall under the definition of terrorism, Hervieu told Le Figaro. Although violent acts are “very serious,” they are not “in the strict sense of the law, […] within the very definition of terrorism.”

For lawyer and blogger Maître Eloas, this measure can be proportionate under the state of emergency regime, “if it turned out that the rioters are using TikTok to incite armed rebellion and coordinate”.

Digital rights expert and lawyer Alexandre Archambault added to this analysis, saying it is up to the local judicial authorities to assess whether TikTok is used to incite violence.

Effectiveness

TikTok’s ban “is in effect and operational (only on phones). The Office of Posts and Telecommunications of New Caledonia (OPT-NC) has been intervening since yesterday to block access to the TikTok application,” the cabinet of the French Prime Minister told BFM TV.

No details were provided about the method used to block access to TikTok.

The French government often uses domain name systems (DNS) in such cases, according to Le Monde. DNS is a protocol that channels internet traffic to the right servers, so if interfered with, users may find themselves in an incorrect address when trying to access TikTok’s website or app.

It is especially easy to effect this interference in New Caledonia, as the telecom regulator OPT-NC also owns the only telecom operator, Mobilis.

But this method can also be easily circumvented if users manually change the DNS used by their devices. Users could also use virtual private networks (VPN), which would allow them to access TikTok as non-New Caledonian users.

Éric Bothorel, a parliamentarian with Macron’s Renaissance, wrote on X that he was wondering if the TikTok ban may actually be counterproductive. It could “fuel the narrative of those who seek to harm us by designating the French state as oppressive.”