New York Protections for Sources and Source Material

Note: This page covers information specific to New York. See the section on Protecting Sources and Source Material for more general information.

New York has a shield law that may protect your sources and newsgathering materials. If you qualify for its protection, you must be careful not to disclose information you obtain to people who do not work for the same organization as you, or you may lose the shield's protection.

New York state courts recognize a qualified "reporter's privilege" based on the U.S. Constitution and the New York Constitution. The precise scope of these protections is uncertain. New York state courts do not recognize any common law privilege for newsgatherers.

Federal courts in the 2nd Circuit Court, which encompasses New York, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. The level of protection depends on whether you obtained the information in question in exchange for a promise of confidentiality.

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.

Shield Law

Source

New York's shield law is located at N.Y. Civ. Rights Law § 79-h. Because of the statute's complexity, we won't reproduce it here. Instead, we will explain its important aspects below.

Who is Covered?

New York's shield law covers only specific categories of people. In general, you must earn money in connection with work for a traditional news organization in order to be protected. Specifically, you must meet three conditions: (1) you must have the right kind of job; (2) you must work with what the law defines as "news"; and (3) you must work in one of the media listed by the statute. Meeting all three of these conditions likely will present a serious obstacle for many amateur and non-traditional journalists and other online publishers.

Each condition is detailed below.

Type of Job

To qualify for protection, you must either be a "professional journalist" or a "newscaster." You must earn money in your role to qualify for either.

The law defines "professional journalist" to mean:

one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

In essence, you must be an employee or freelance worker performing a newsgathering or editing role for a professional medium of communication.

The law defines "newscaster" to mean someone who "for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission." In other words, you must earn money as a television or radio reporter.

News

To qualify for protection, you must work with "news." The law defines "news" to mean "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Some information, such as a profile of a person of no particular importance who has not been involved in a significant event of public importance, might not be included in this definition.

Medium

To be protected, you must work in one the media listed below:

  • Newspaper: Only conventional print newspapers that charge a subscription fee and have been established for at least a year fit in this category.
  • Magazine: Only conventional and established print magazines that charge a subscription fee and have been established for at least a year fit this category.
  • News agency, press association, or wire service: Essentially organizations analogous to the Associated Press or Reuters.
  • Radio or television transmission station or network: Unlike the other other mediums listed above, the law does not define these terms. Thus, unlike with the other terms, it is unclear if radio and television are limited to traditional formats, or if they can include cable networks or Internet-based formats.
  • Other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public: This is likely to be broad enough to encompass online publication, but only to the extent that such publication is carried out either as a business or to demonstrable professional standards; citizen journalists, as well as amateur reporting and blogging, are unlikely to be protected.  This category also serves as a catch-all for other modes of professional communication not listed above, such as print books.

What Information is Protected?

The New York shield law protects the identity of sources and information collected in the course of newsgathering. You do not need to have spoken with the source or obtained the information in confidence to obtain protection, but the level of protection is higher if you did.

Disclosure of information has significant negative consequences for protection under the shield law. The impact depends on who discloses the information:

  • If your source discloses his or her identity after you have spoken with him or her, the source is considered "non-confidential." You still are protected by the the shield, but the level of protection is lower than if the source's identity were confidential.
  • If, after obtaining information, you disclose confidential information or the identity of your source to anyone other than another reporter or editor at your news organization, you waive (i.e., give up) protection for that information. In other words, you lose the shield's protection completely. As a result, in order to retain protection, you should not speak about confidential news information or reveal the identity of sources to outsiders. Once information is published, it is not protected.

How Strong is the Protection?

New York's shield law has two tiers of protection.

Tier One: If you promised your source confidentiality or obtained information in return for a promise of confidentiality, then the shield is absolute. In other words, courts may not order you to reveal it under any circumstances. The absolute protection applies equally whether the information is sought in a civil or criminal case. It applies even if you are a party to the case in which information is sought (e.g., you are suing or being sued).

Tier Two: If the information is not confidential, then the shield is qualified, which means that sometimes a court may order you to reveal the information. In order to order disclosure, courts must find all three of the following factors to be true:

  • The information is highly "material" (legally significant) and relevant;
  • The information is critical or necessary to a party's case; and
  • The information is not obtainable from any alternative source.

These tests apply when information is sought in a civil case, in a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case. Courts also are more likely to order disclosure when the the party seeking the information is a criminal defendant.

For more detailed information about the New York shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

Constitutional Protection in New York State Court

Even if the shield law does not apply to you, you may be able to protect your newsgathering information based on other legal protections. New York state courts recognize a qualified reporter's privilege based on the U.S. Constitution and the New York Constitution. It covers both confidential and non-confidential information. Beyond that, the exact scope of the protection is uncertain.

For additional details, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

Constitutional and Common Law Protection in Federal Court

Federal courts in the Second Circuit, which encompasses New York, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.

Who is Covered?

Exactly who is covered by the reporter's privilege is unclear. Some cases suggest, however, that you do not need to receive payment for your work or be affiliated with a mainstream news publication.

What Information is Protected?

The reporter's privilege extends to the identity of sources and unpublished information obtained or prepared during newsgathering. It protects both confidential and non-confidential information, but confidential information gets more protection (below). If you witness a crime, the privilege does not protect your observations.

How Strong is the Protection?

There are two tiers of protection, depending on whether the information is confidential or not. Both levels of protection are qualified, meaning that a court may order you to reveal information under some circumstances.

Tier One: If you obtained the information in confidence (i.e., in exchange for a promise of confidentiality), then it gets more protection. A court can order you to disclose the information only if it finds that each of the following is true:

  • The information is highly "material" (i.e., legally significant) and relevant;
  • The information is necessary or critical to the maintenance of the party's case; and
  • The information is not obtainable from other available sources.

Tier Two: If you did not obtain the information in confidence, then it gets less protection. A court can order you to reveal non-confidential information if it find that each of the following is true:

  • The information is "of likely relevance" to a significant issue in the case; and
  • The information is not reasonably obtainable from other available sources.

These tests apply when the information is sought in a civil case, in a a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case, and the protection is especially weak if someone sues you for defamation. In addition, courts are more likely to order you to disclose information if a criminal defendant is seeking the information in order to mount a defense.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 2nd 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.

 

Last updated on April 26th, 2012

   
 
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