Theory versus practice

What a multitude of media law books we seem to be throwing at journalism students at the moment.

Hardly a month goes by without the launch of a new volume aimed to rival the NCTJ‘s preferred and trusty work on the topic.

Alongside the 19th edition of McNae’s Essential Law for Journalists is Peter Carey’s authoritative Media Law, Frances Quinn’s excellent Law for Journalists, plus Helen Fenwick and Gavin Phillipson’s encyclopaedic Media Freedom Under the Human Rights Act. There is A Guide to the Freedom of Information Act 2000, from OUP, Privacy and Freedom of Expression,also from OUP, and the Blackstones Statutes series covering media law, human rights and intellectual property.

Outside of formal teaching sessions, students can do no worse than researching the latest reported cases and decisions from the Court of Appeal, House of Lords, the High Court and the European Court of Human Rights (ECHR).

One of the most valuable (and free) authoritative online resources is the British and Irish Legal Information Institute database at www.bailii.org.

Why is it important to point students in the direction of primary legislation and decided case law? Because these are the resources that carry judicial weight. With the exceptions of The Times Law Reports and the Weekly Law Reports, remaining newspaper articles, textbooks and academic journals are not recognised as legal authorities.

McNae’s and other volumes provide plenty of material for discussion and analysis in lectures, seminars and workshops. But the extent to which these works may be relied on for examination revision and essay assignments rather depends on how tutors choose to assess students’ knowledge of the law.

Orchard News Bureau colleague Barry Turner and myself have introduced some innovative assessments on media law units at the BJTC-accredited Lincoln School of Journalism, requiring students to put themselves in the role of media lawyers as well as in the shoes of claimants and defendants involved in litigation.

We have run adversarial moot court hearings in seminars based on mock articles, marking on the quality of arguments for and against damages, for the ability to cross examine and respond, and for the deployment of relevant case law and statute.

We have served sample N1 claim forms (aka writs) on students, and have given the statutory period for defences to be filed – also marked on an ability to locate and cite proper legal authorities.

We have used actors to play the parts of witnesses, defendants and lawyers in mock trials, and given students deadlines to turn round their copy.

Our rationale is that if they are familiar with the process of litigation, they are more likely to be alert to the precautions that are necessary in the news gathering and writing stages of the job.

Great if they can recite the dictionary definition of fair comment. Not so good if they can’t stand up in front of a judge and interrogate a classmate over the precise meaning of words in a given theatre review.

What about alternative and more traditional assessments, such as essays and exams?

Discursive essays – for example: ‘How does anti-terrorism legislation impact on the work of the investigative journalist’or ‘Are headteachers justified in banning parents from filming the school panto’– provide students with an opportunity to formulate an academic argument. But students can rehearse what their tutor told them in the lecture, or recite Lord Nicholls’ 10-point guide to responsible reporting. Worse still, essays are wide open to plagiarism.

Exams test the ability to absorb detail and think around a series of simple questions with right or wrong answers, make sense of a problem, or develop an academic-style argument. But exams are stressful, artificial and regimented, and are unreliable because candidates may not be at their best.

Students can get 20 per cent to 25 per cent of marks in multiple-choice papers just from pot luck – because only one option can be right and the rest have to be wrong. Picking the correct response does not necessarily mean that the candidate knows their stuff.

We prefer to let them loose on scenarios, backed up with reference to case law and statute. As my agency specialises in assisting journalists and editors to assert their rights over local government, let’s put this into context.

If a Chief Constable or police press officer were to tell a journalist that they were not allowed to record or film a bona fide public meeting of a police authority, or interview members on constabulary property for legal or security reasons, it would be impossible to resolve the matter anywhere other than in the courts.

That is because any deal brokered would lack legitimacy. Any proper challenge could only succeed with reference to statute and judgements in the High Court, Court of Appeal, House of Lords or the ECHR.

The content of a hundred lectures and a dozen textbooks wouldn’t appear on the radar.

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