A LEADING Scottish academic has warned French President Emmanuel Macron that his attempt to impose legislation banning fake news is likely to fail on human rights grounds and because no-one has yet defined fake news in legal terms.

Zhongdong Niu, a law lecturer at Edinburgh Napier University, says Macron’s bid to ban fake news on the internet during election campaigns — his own was full of falsehoods posted on the web by anonymous trolls — will require internet content regulation.

Writing in The Conversation, of which Napier is a major academic supporter, Niu pointed out: “Since social media in particular has grown rapidly, fake news has become less controllable and more sensational.

“This has been particularly noticeable in politics, such as in the recent French and American presidential elections, even if the impact of fake news is difficult to ascertain.

“When you talk about clamping down on fake news, you are basically talking about regulating online press and social media — the question is how, and how far regulation should extend. Macron’s proposal sets a goal of regulating fake news no matter where it is published. He has provided little detail about how he would do this. One option would be to introduce content regulation to the online sphere, but that would raise a number of questions. For one, from a legal point of view, it’s not easy to define what fake news is.

“The very term suggests intent, but how to separate this from the fact that the media has long been allowed to make mistakes to perform its democratic functions — so long as it has made responsible attempts to investigate the facts of the reports?

“Secondly, the freedom of expression question refuses to go away. You expect a higher degree of free speech on social media because these sites are an essential alternative source of news free from the control of corporate powers. Enhance the regulation of this sphere and you are in danger of stifling lively online debate.

“Indeed, article 10 of the European Convention on Human Rights protects free expression, only allowing restrictions on public interest grounds. Any attempt to restrict political speech may lead to the intervention of the European Court of Human Rights — which the UK might well remain a party to after Brexit.”

The lecturer points out that while there is little regulation of internet content generally “there is regulation at EU level in the form of the Audio-Visual Media Services Directive 2007.”

He said: “It has harmonised member states’ laws in this area, establishing a regime that distinguishes between scheduled ‘audio-visual services’ like the BBC, ‘on-demand services’ like Netflix, and ‘user-generated social media’ like Twitter.

“In particular, audio-visual services — also known as ‘linear services’ — are obliged to take editorial responsibility, while social media is excluded from this obligation. The press, whether newspapers or online publications, and private blogs are not even covered by the directive, except for their audio-visual elements. In view of the increasing influence of online content, the European Commission recently amended the directive. This slightly enhances the obligations for online media.

“As far as accuracy is concerned, the amended directive requires online platforms to behave responsibly, but this is a rather principled provision without too much specific content.

“In short, as far as fake news is concerned, the EU regulations still leave social media and web publishing relatively unregulated. Again, the best resorts are general defamation law or criminal law.”