Because UFADAA laws (Uniform Fiduciary Access to Digital Assets Act) are still relatively new in most states, many wills, trusts and powers of attorneys may not have UFADAA specific provisions. Attorneys at Hartman & Winnicki, P.C. have been providing estate planning advice for more than 30 years and technology and Internet law counseling for almost 20 years.
In most cases we can quickly determine if you live in a state that has enacted UFADAA and if your estate planning documents contain UFAADA specific provisions. If you are interested in consulting with Hartman & Winnicki, P.C., to discuss whether you live in a UFADAA complaint state and review of your estate planning documents to determine if they contain UFADAA specific provisions, click http://ravin.com/contact/ . (Do not send any documents or confidential information).
Most states, including NJ, NY and FL, have passed a law which provides that social media, email and cloud storage account holders can designate persons to access their content when they die. Without properly designating a fiduciary pursuant to UFAADA (Uniform Fiduciary Access to Digital Assets Act) in your will, trust, separate writing or in an online tool provided by the online service provider, your executors or trustees may not be able to gain access to all the content in your social media and online accounts, including your photos, videos, records, and emails. This could result in your heirs and beneficiaries not being able to obtain any of the content. If these individual accounts are used in your business, then those businesses may be prevented from having access to important records and valuable content and accounts. Click the “Contact Us” button if you want to discuss with a Hartman & Winnicki, P.C. attorney how to comply with UFAADA so that your online content and records are made accessible in accordance with your wishes when you are gone. Initial telphone consultation is free upon appointment. Do not send documents or confidential information.
Opinions are protected by the First Amendment. The real question is whether the statement is opinion or not. Opinions are not capable of verification, but facts are capable of verification. Sometimes statements are a mixture of both opinion and facts. If a statement includes a disclosure of true facts, but expresses a subjective belief of the author or the publisher, then that cannot be proven false, and therefore it is protected.
A business does not have the right to sue for defamation merely because it receives a bad review. The real question is whether the review is factually false or not, and whether it’s either concerning the business or its products and whether the statement causes a loss of goodwill or injury to the reputation of the company.
The best thing that you can do when you start a business is to put it in writing. Set forth the responsibilities of the parties, whose going to take care of what. Also, you have to set forth the ownership interest. What percentage of the company is each person going to own. Set forth what contributions are going to be made by each member. Are they going to be supplying capital, services, or are they going to be providing property of some kind. What happens if one of the owners wants to cease being an employee? Who gets to determine who fires, not only members who are owners of the company, but also employees, generally? And setting forth what happens in the event the company is sold, how the proceeds are distributed.
Generally, suits on guarantees are permitted even though the original guarantor filed for bankruptcy. There is an exception where a corporation files for bankruptcy and the guarantors are principles of that corporation. Sometimes the bankruptcy court will stay suits on the guarantee because proceeding with the suits may interfere with the reorganization of the corporation.
Depending on the jurisdiction, convenance not to compete can be enforceable. But, they have to be reasonable as to the scope of the restriction, the geographic area that’s being restricted and the time, or the length, the duration of the restrictive period.
Usually it’s a post employment restrictive covenant. And if they are unreasonable or found to be unreasonable, courts in some jurisdictions can revise them, calling “blue penciling” and make them more reasonable. Especially in the age of the Internet, the geographic area is always an issue.
But the safest thing to do when entering into a covenant not to compete, or restrictive covenant, is to tailor and match the restriction to what the employee actually was doing. If it’s broader than that, it might be deemed to be anti-competitive, or not made for legitimate business purpose.
A suit can be filed against John Doe defendants if the identity of the authors of the statements are not known. The problem is that the plaintiff has to act quickly, because the online service providers generally do not keep records of the IP addresses for a long time. And subpoenas have to be served on the online service providers and internet service providers to try and determine the identify of the anonymous posters.
The defenses for online defamation are the same for ordinary defamation and they include truth, because that’s actually an element, falsity is an element of defamation. Opinion, if it’s pure opinion and not mixed opinion. Privilege. Privilege comes in basically two varieties, absolute and qualified. Absolute is a privilege, for instance, anything spoken during a judicial proceeding in court or testimony or in filed papers in court are absolute privilege. There are qualified privileges, including privileges, for instance when a former employer gives information about a former employee to a perspective employer. There’s a privilege called the fair report privilege when somebody is reporting about a judicial proceeding or government proceeding and that has to be full and fair reporting to give it that qualified privilege.
Defamation claims vary from jurisdiction to jurisdiction, but basically it is a statement made to third parties about or of and concerning the plaintiff. It has to be statement of fact, and cause injury to the reputation of the plaintiff or cause people not to associate with the reputation.
If the plaintiff is a public official or public figure, then a higher level of fault is needed and that’s called actual malice and requires either that the person knew that the information that the statement was wrong, or had reckless disregard for whether the statement was true or false.