Reporter's Recording Guide
Last updated April 2020Compare
An individual who is a party to an in-person, telephone, or electronic conversation, or who has the consent of one of the parties to the conversation, can lawfully record it. S.C. Code § 17-30-30.Compare
The consent of at least one party to an in-person conversation is required to record “any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation.” S.C. Code §§ 17-30-15, 17-30-30. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy.Compare
Telephone and electronic communications
The consent of at least one party to any telephone call is required to record it. S.C. Code § 17-30-30. And because the provision of the law dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature,” consent likewise is required to disclose the contents of text messages sent between wireless devices. S.C. Code § 17-30-15.Compare
It is unlawful to photograph or record another person without his or her knowledge or consent for the purpose of arousing or gratifying sexual desire where the person photographed or recorded has a reasonable expectation of privacy. S.C. Code § 16-17-470.
It is also a misdemeanor to eavesdrop or be a “peeping tom on or about the premises of another” or to employ the use of audio or video equipment to “spy on or invade the privacy of others.” S.C. Code § 16-17-470. However, this does not apply to “any bona fide news gathering activities.” Id. For example, the South Carolina Court of Appeals found the “peeping tom” law inapplicable to the conduct of newspaper reporters attempting to listen to city council proceedings during a closed executive session because the reporters were on public property — not the premises of another — and did nothing “to enable them to overhear what was going on in the executive session other than to wait in the place provided as a waiting room for reporters and other members of the public.” Herald Publishing Co., Inc. v. Barnwell, 351 S.E.2d 878, 883 (S.C. Ct. App. 1986).Compare
Illegally recording an in-person, telephone or electronic conversation is a felony offense. S.C. Code § 17-30-20.Compare
Anyone whose oral, telephone or electronic conversation has been recorded or disclosed in violation of the law can bring a civil suit to recover the greater of actual damages, $500 a day for each day of the violation, or $25,000, and can also recover punitive damages and attorney’s fees and costs. S.C. Code § 17-30-135.Compare
Disclosing the contents of an oral, telephone or electronic conversation obtained through illegal recording is a felony. S.C. Code § 17-30-20.
If a journalist received an illegally recorded conversation and was not involved in the illegal conduct, the First Amendment likely protects the publication of such material, to the extent it is a matter of public concern and truthful. See Bartnicki v. Vopper, 532 U.S. 514 (2001). For more information, see this guide’s introductory chapter here.Compare
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording. For more information on the right to record broadly, see this guide’s introductory chapter here.
The U.S. Court of Appeals for the Fourth Circuit, which includes South Carolina, has not yet directly addressed the First Amendment right to record.Compare