Apr 30, 2024 3 min read

EU TikTok ban “is not excluded” says European Commission President, as FCC Commissioner says US ban won’t be scuppered in the courts

TikTok is embarking on a court battle in the US to try to block the recently passed sell-or-be-banned law. FCC Commissioner Brendan Carr predicts those efforts will fail. Meanwhile, European Commission President Ursula von der Leyen says a possible future EU TikTok ban can’t be entirely ruled out

EU TikTok ban “is not excluded” says European Commission President, as FCC Commissioner says US ban won’t be scuppered in the courts

A TikTok ban in the European Union could happen, according to Ursula von der Leyen, President of the European Commission. Her comments come as TikTok prepares to challenge the sell-or-be-banned law recently passed in the US through the courts. On that, FCC Commissioner Brendan Carr, a regular critic of TikTok, has said he's confident those legal challenges will fail. 

The TikTok-targeting sell-or-be-banned law in the US came up during a debate in Maastricht staged ahead of the upcoming European elections, where von der Leyen was appearing as a representative of the European People's Party rather than in her role as Commission President. 

Under the new US law, TikTok’s China-based owner ByteDance has 270 days to sell the app or face a US-wide ban, based on concerns that the Chinese government has access to TikTok user-data via ByteDance. 

According to Politico, when asked about whether or not a similar measure might be considered in the EU, von der Leyen said, simply, “it is not excluded”. She then noted that the European Commission was “the very first institution worldwide to ban TikTok on our corporate phones”, adding, “We know exactly the danger of TikTok”.

TikTok has had run-ins with EU regulators since the Digital Services Act became law, though that's in relation to platform safety concerns rather than data security issues. 

Regulators have alleged that TikTok does not do enough to protect teenagers using the service. Then, earlier this month, they said that the social media app should have undertaken a risk assessment before launching a rewards programme as part of TikTok Lite in France and Spain. In response, TikTok disabled the rewards programme within Europe. 

Back in the US, platform safety concerns have also been raised, especially in relation to the use of the app by young teenagers, though the Chinese government getting access to user data was the primary motivator for the sell-or-be-banned law. 

TikTok is hoping to scupper that law in the courts by arguing that it breaches First Amendment free speech protections and is therefore unconstitutional. Similar arguments successfully stalled previous attempts to ban TikTok in the US, including the ban instigated by former President Donald Trump and an anti-TikTok law in the state of Montana.

However, Brendan Carr, a commissioner with US media regulator the Federal Communications Commission, has told reporters he is confident that the US government will defeat any efforts to scupper the sell-or-be-banned law in the courts. 

Carr has been an outspoken critic of TikTok for a while now, in 2022 calling on Apple and Google to remove TikTok from their respective app stores because of the alleged data security risks. 

According to Law360, he spoke about the new TikTok law following a meeting of the FCC last week. He said, “The Supreme Court's First Amendment law draws a distinction between regulations based on conduct on the one hand and content on the other. This is based on conduct. So I think this is a pretty easy case under the First Amendment”. 

While the courts have stalled the TikTok ban in Montana, that was down to the limitation of state powers, said Carr. The court, he told the meeting, concluded that “TikTok involved a matter of national security and foreign policy, where Congress has authority, not the state”. 

“So that Montana case is not analogous here”, he added, “because what was missing in that case for the court was valid exercise of state power, and we have that here because Congress has the power in the Constitution to pass a law like this”. 

In an interview with the Economic Times, Carr also noted that India banned TikTok back in 2020, adding that that could be relevant in the upcoming court proceedings. “Imagine that TikTok is going to argue that this is some sort of unique American obsession with China to foresee threats that don't exist”, he mused. 

“The fact that India, a bordering neighbour to China, has seen a similar threat from TikTok and taken similar action, is going to be potentially relevant in some of the court filings to show that this is a broad deep concern about TikTok and not simply some unique feature of America's viewpoint on China”. 

ByteDance continues to deny there are any data security issues with TikTok and has vowed to shut the app down in the US if its legal efforts in court fail. Sources have told Reuters that this is not a mere bluff. ByteDance bosses don't want to sell on or split up the company’s algorithms, and are primarily concerned about the impact any spin off of TikTok could have on its Chinese operations, which generate most of the firm’s revenues. 

However, if the EU was to follow the lead of the US, shutting off two massive markets for TikTok, ByteDance might be forced to rethink its strategy. Von der Leyen was speaking off the cuff at a political debate of course. Though she's not the sort of politician to make such comments on a whim if she didn't believe there was at least some possibility of the EU putting the same emphasis on TikTok's data security as it already is when it comes to platform safety.

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