We have previously written about the difficulties that businesses can encounter when trying to get a posting removed from a social media site. We have also previously covered several matters relating to the special online protections legislators have created for children (e.g.COPPA).

These two areas combined in a local law passed by Albany, New York relating to cyberbullying. Bullying of children has long existed in schools, but advances in technology, including social media, have expanded both the frequency and extent of the problem. Albany addressed the issue with Albany County Local Law No. 11 of 2010, which made cyberbullying a criminal offense if committed against “any minor or person”—which included corporations. The law defined “cyberbullying” very broadly:

Any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

Violations could be punished by up to one year in jail and a $1,000 fine.

In December of 2010, after the local law was in effect, a 15-year-old high school student created a Facebook page and posted sexual information about fellow classmates. He was charged with violating the law, and entered a guilty plea on the condition that he reserved the right to challenge the constitutionality of the law.

On July 1, 2014, New York’s highest court ruled, 5-2, that the law was too broad and violated the First Amendment to the U.S. Constitution. Although Albany conceded that the law was overbroad, the county asked the court to sever the overbroad language and to leave the remainder of the law intact. The court refused, stating that severing the problematic provisions was not permissible in this instance because the court would encroach upon the county’s legislative authority.

The court agreed with the county that its motivation to protect children from cyberbullying was a permissible purpose for the county, and that the defendant’s Facebook communications were “repulsive and harmful to the subjects of his rants and potentially created a risk of physical or emotional injury based on the private nature of the comments.”  Nevertheless, the court dismissed the charges against the teenager because the law was “overbroad and facially invalid under the Free Speech Clause of the First Amendment.”  A county executive has stated that he will work with the legislature to propose new legislation that addresses the court’s concerns.

Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.