A Legitimate Goal, an Unlawful Instrument

Albania’s Constitutional Court has told the government that child protection is a legitimate goal and an unlawful instrument is still unlawful — and that next time, it must go through parliament.

Tirana Examiner Legal Desk 

Today’s Constitutional Court ruling on the TikTok ban is not a vindication of unrestricted platform access. It is a finding that the Albanian executive reached for a constitutional shortcut and that the shortcut was impermissible. The distinction matters, because the government will be tempted to read the decision as hostile to its underlying objectives. It is not. It is hostile to how those objectives were pursued.

The instrument was the problem

The court’s most consequential finding concerns lawfulness. Article 17 of the Constitution requires that fundamental rights be restricted “only by law” — a standard that, under settled Council of Europe doctrine since Sunday Times v. United Kingdom (1979), demands a clear, specific, and foreseeable parliamentary mandate. Council of Ministers Decision No. 151/2025 had no such mandate behind it. The statutes cited as its legal basis — on electronic communications and child rights — granted the government general regulatory competence in those fields. They did not authorise a blanket suspension of access to an entire platform for the whole Albanian population.

The circularity the court identified is precise: the VKM was simultaneously the legal basis and the operative measure. Parliament had not defined the circumstances under which platform access could be suspended. The Council of Ministers defined them itself, then acted on them. That is not implementation of a legislative framework. That is substitution for one.

The practical consequence is unambiguous. Any future platform restriction requires an explicit parliamentary mandate first. Urgency does not change this. The more serious the restriction, the more clearly the Constitution requires it to originate in the legislature.

Necessity, not just proportionality

On proportionality, the government argued that its lack of direct technical capacity to impose targeted interventions on TikTok left a full access block as the only available tool. The court acknowledged the argument and rejected its conclusion. The unavailability of one convenient measure does not establish the necessity of the most restrictive one, if less intrusive legal alternatives — compliance negotiations, formal regulatory engagement, targeted enforcement under child protection statutes, legislative acceleration — were never seriously examined. The record showed they had not been.

Two subsidiary findings reinforce this. The existence of other platforms available to affected users, including journalists, did not make the TikTok block proportionate; each platform constitutes a distinct public communication space and cannot simply be substituted by another. And the measure’s temporary character did not cure its disproportionality: a general prohibition conditioned on uncertain future technical developments by the platform itself is, in constitutional terms, an indefinite ban with a speculative exit condition. Framing does not change substance.

A declaratory ruling with lasting effect

VKM 151/2025 had already been repealed before today’s hearing. The government requested dismissal on that basis. The court declined, invoking its public interest jurisdiction under Article 51(2) of its Organic Law, and ruled on the merits. There is accordingly no annulment order — nothing remains to annul. What the ruling produces instead is a constitutional benchmark: a formal declaration of violation that future legislative and executive action in this space will be measured against.

That procedural choice is itself significant. A constitutional court that allows governments to extinguish scrutiny by repealing challenged acts before judgment is a court whose jurisdiction can be managed by the executive. The court closed that avenue. In doing so it confirmed that its function is not merely to resolve live disputes but to define the constitutional limits within which public power operates — including after the specific act in question has gone.

The court accepted that child protection constitutes a sufficiently weighty public interest to justify, in principle, some limitation on freedom of expression. It accepted the goal. It rejected the method, the process, and the instrument. Future policymakers who read this ruling as foreclosing action on platform safety will have misread it. It forecloses only the shortcuts.

The full reasoned judgment will be published within the statutory deadlines under Law No. 8577 of 10 February 2000.

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A postscript on the Prime Minister’s response

Within hours of the ruling, Prime Minister Rama offered a characterisation of the decision that requires correction.

The Prime Minister argues that the Constitutional Court, in finding the ban unlawful, effectively ruled against the 90% of Albanian parents and teachers who supported TikTok’s closure. This is a misunderstanding of constitutional review, whether genuine or strategic. Courts applying Article 17 do not measure the popularity of executive measures. They measure their legality. A blanket platform suspension backed by unanimous public opinion would still require a clear parliamentary mandate. The Constitution does not contain a majority exception to the rule of law.

The Prime Minister also argues that TikTok’s subsequent commitments — the “extra measures” obtained from the company — were products of the ban’s leverage, and that the court’s logic would have prevented those outcomes. This may be true as a matter of negotiating dynamics. It is irrelevant as a matter of constitutional law. The ends-justifies-the-means argument is precisely the reasoning Article 17 exists to prevent from becoming executive doctrine. A government that can impose unlawful restrictions whenever it judges the results beneficial has, in effect, no constitutional constraints at all — only self-imposed ones.

What the court held, plainly, is that the instrument was wrong. It did not hold that the goal was wrong, that the concern was unfounded, or that platform regulation is impermissible. A government that reads this ruling as an obstacle to child protection has chosen not to read it carefully. The path to lawful platform regulation runs through parliament. That is not a judicial imposition. It is a constitutional requirement.