North Carolina Protections for Sources and Source Material  Note: This page covers information specific to North Carolina. See the section on Protecting Sources and Source Material  for more general information.
North Carolina has a shield statute that may protect your sources and news-gathering materials. It protects both the identity of your sources and unpublished information collecting during news-gathering. The shield law provides only qualified protection, meaning that a court can order you to reveal information under certain circumstances, even if you qualify for the shield law's protection. North Carolina state courts do not recognize a state constitutional or common law privilege for reporters. Federal courts in the Fourth Circuit, which encompasses North Carolina, recognize a qualified privilege based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain. The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Source and Statutory Text
North Carolina's shield law, located at N.C. Gen. Stat. § 8‑53.11 , states:
(a) Definitions. – The following definitions apply in this section:
(1) Journalist. – Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.
(2) Legal proceeding. – Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi‑judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.
(3) News medium. – Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.
(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.
(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:
(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
(2) Cannot be obtained from alternate sources; and
(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought. Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.
(d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.
Who is Covered?
North Carolina's shield law generally covers anyone who is involved with news on behalf of a medium that regularly provides news to the public. The key limitation is that your medium must be "regularly engaged in the business of publication or distribution of news." If you post information on a bulletin board that does not regularly distribute news, or on a static and unchanging website, you probably will not be protected. Moreover, to be protected, your medium must be "accessible to the general public."
To be covered, your involvement with news can be in the role of "gathering, compiling, writing, editing, photographing, recording, or processing information." This phrase seems to encompass most news-related roles. Your medium can be "print, broadcast, or other electronic means" -- essentially, any medium.
What Information is Protected?
North Carolina's shield law protects, with an exception, any "confidential or nonconfidential information, document, or item" you obtain while acting in your role as a newsgatherer. The only exception is that the shield does not protect your eyewitness observations of any crimes or torts. The exception also includes any physical evidence and any recordings you make of a crime or tort.
How Strong is the Protection? The shield law provides qualified protection, meaning that a court can order you to reveal covered information under some circumstances. In order for a court in North Carolina to order disclosure of information that otherwise would be protected by the shield, the court must find all three of the following to be true: The information is relevant and "material" (i.e., legally significant) to the case;
The information cannot be obtained from alternative sources; and
The information is essential to the case of the person seeking it.
North Carolina's shield applies equally in civil and criminal cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense, or when you are a party to the case. For more detailed information about the North Carolina shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: North Carolina . Constitutional Protection in Federal Court Federal courts in the Fourth Circuit, which encompasses North Carolina, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The precise scope of the privilege is unclear.
Who is protected?
Federal courts in the Fourth Circuit have not expressly defined who is a "reporter" for purposes of the privilege, although they have applied the privilege to reporters and editors in traditional forms of media, including small and large newspapers. The CMLP is not aware of any Fourth Circuit cases applying the privilege in an online context. Therefore, whether amateur and non-traditional journalists publishing online can take advantage of the privilege is an open question.
What information is protected?
The Fourth Circuit has not defined with precision what information is protected by its privilege. As a general matter, it appears to cover the identity of sources and unpublished information, both confidential and non-confidential, but the privilege is stronger with regard to confidential information.
How strong is the privilege? The reporter's privilege is qualified, which means that a court may order you to reveal information covered by the privilege if the requesting party's need for it outweighs the policies favoring a privilege. In civil cases, in order to order disclosure, a court must find each of the following to be true:
The information is relevant;
The information cannot be obtained by alternative means; and
There is a compelling interest in the information.
In criminal cases, the shield may only apply with regard to confidential information. As a practical matter, the courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question. For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 4th Circuit . Privacy Protection Act The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b) . If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material .
Source URL (modified on 04/23/2008 - 5:13pm): https://www.dmlp.org/legal-guide/north-carolina/north-carolina-protections-sources-and-source-material#comment-0
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