Take That Down! Expunged Records and Newspaper Archives

Have you gotten a call or letter or email from a lawyer saying his client’s record has been expunged, and so the story you posted last year no longer is accurate?  The lawyer wants you to take it down.  What do you do?

Assuming the information you published was accurate when you published, you have no obligation to take it down, and there are good reasons you shouldn’t.

There has been a fairly significant push to have people take advantage of NC’s recently relaxed expungement law.  There also is a statute on the books that says that if you are in the business of selling access to a criminal records databases (think www.123nc.com), you must update the database to remove convictions that have been expunged.  However, there is no law – nor could there be, thanks to the First Amendment – requiring you to remove any articles from your archives.  The analogy, of course, is that you have no obligation to go to the public library and pull hard copies of your paper that are on the shelves just because someone you wrote about has been acquitted or gotten a conviction expunged.

Maybe the lawyers who send these letters are confused about what the law requires of newspapers.  Maybe they are playing dumb with the hope that you will say, “Oh, okay.  We’ll take it down.”  Either way, the fact that a conviction has been legally expunged of course does not mean it didn’t actually happen. It just means it didn’t legally happened.  And that has no bearing on the accuracy of your original reporting or your right to leave your archived reporting online.

If you learn that there has been an expungement in a case you covered, it is entirely an editorial choice whether to write a follow-up piece or post an editor’s note to the original story or do nothing at all.  If you develop a policy about the issue, you might even consider publishing something to explain how your paper will handle expunged records.  That way your readers will understand legal expungement and why you leave your archives intact.  What you shouldn’t do is tinker with archives and take down stories that are correct and forfeit the position as the author of the First Draft of History.

An important footnote:  There’s a general adage that lawyers talk with lawyers.  At the risk of sounding like I’m drumming up work for the legal profession, if the communication you get comes from a lawyer, your newspaper should have a lawyer answer.  I’m not saying a lawyer would try to trick you into saying something you shouldn’t, but to place that call yourself risks waiving some important rights you have as a journalist and could potentially compromise your paper in the event the “expungee” decides to sue.  It shouldn’t take much time or be costly to have your lawyer write a letter, but your lawyer should explain that any attempt to take legal action for your decision not to remove an accurate article from your website would be frivolous and will be met with vigorous defense, including seeking attorney fees.

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