Eric Pepin - Higher Balance Institute - Discussion

[Laura]

Another goodie!

http://www.citmedialaw.org/threats/xyience-inc-v-bergeron

Xyience Inc. v. Bergeron


Description:

Xyience Inc., a manufacturer of energy drinks and supplements, sued Rich Bergeron in Nevada state court over statements posted on his MySpace.com page and website, unlimitedfightnews.com. According to the complaint, Bergeron posted an article to his MySpace page that contained allegations that that Xyience was under investigation by the Securities and Exchange Commission and that a class action lawsuit was pending against the company. Xyience contends that Bergeron is the author of these statements, but he maintains that he found these statements in an email widely circulated on the web, which he merely posted to his MySpace page with a disclaimer. (MySpace removed the posting and Bergeron's profile shortly thereafter.) Mr. Bergeron provided us with links to other websites where the article apparently still appears (here, here, and here).

The complaint further alleges that Bergeron posted to his website a report entitled "Xyience Investigative Report: Creator Russell Pike's Criminal Tendencies Revealed," in which he claimed that the company and its majority shareholder, Russell Pike, were defrauding investors and conspiring with Dana White, president of Ultimate Fight Challenge, to defraud investors. The complaint claims also that Bergeron "continues to post defamatory articles" about the company on his website, but does not identify any specific statements.

The complaint sets forth claims for defamation, tortious interference with prospective economic advantage, and intentional interference with contract. Xyience alleges that Bergeron's reports have cost the company millions of dollars due to lost investor contributions, prompting the company to seek $25 million in damages.

Alongside the complaint, Xyience filed a motion for preliminary injunction to compel Bergeron to take down his reports and to prohibit him from publishing any future reports about Xyience. On July 27, 2007, Bergeron filed a motion to quash service of summons (i.e., a motion to dismiss) for lack of jurisdiction, arguing that the Nevada court does not have personal jurisdiction over him because he is a resident of Massachusetts without significant contacts with Nevada.

On September 6, 2007, the court granted Xyience's motion for a preliminary injunction. The court's order requires Bergeron to "remove any and all articles or postings regarding false claims about Xyience from the internet" and prohibits him from making any statements suggesting or implying that Xyience is being investigated by the SEC. It also requires Bergeron to remove "any and all articles or postings claiming that Xyience is defrauding investors and/or is conspiring with Dana White or the Ultimate Fight Challenge to defraud investors" and prohibits him from making any future represenations to that effect. On the same day, the court dismissed Bergeron's motion to quash to service of summons.

Update:

10/01/2007 - Bergeron filed a motion to dismiss the complaint.

 

[Laura]

This is one where you hope that the plaintiff will win:

http://www.citmedialaw.org/threats/snyder-v-phelps

Snyder v. Phelps


Description:

The Westboro Baptist Church is a fundamentalist Christian church that contends that God kills soldiers in Iraq and Afghanistan as punishment for America's tolerance of homosexuality and for the presence of gays in the U.S. military. The church operates a number of websites, including _www.godhatesfags.com, on which it disseminates its rabidly anti-homosexual views. The church has gained notoriety for staging protests at the funerals of U.S. soldiers in order to draw attention to its message.

Albert Snyder's son, Lance Corporal Matthew Snyder, was a U.S. Marine who was killed on March 3, 2006 during active service in Iraq. His body was returned to the United States, and his family held a funeral for him on March 10, 2006 in Westminster, Maryland.

Westboro Baptist Church pastor and founder Fred Phelps and members of his congregation picketed Matthew's funeral, holding signs expressing anti-gay, anti-American, and anti-Catholic slogans, including "God hates you" and "You're going to hell."

Westboro Baptist Church also posted an essay on its website entitled "The Burden of Marine Lance Cpl. Matthew A. Snyder." In the essay, statements indicated that Albert and his wife “raised [Matthew] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator.”

On June 5, 2006, Snyder filed a lawsuit in federal court in Maryland against Westboro Baptist, Fred Phelps, and anonymous members of the church congregation. The complaint included claims for defamation, two counts of invasion of privacy (intrusion on seclusion and publicity given to private life), and intentional infliction of emotional distress.

On September 18, 2006, the defendants filed a motion to dismiss the complaint on jurisdictional and substantive grounds. The Court denied the motion on October 30, 2006.

Snyder's amended complaint, filed February 23, 2007, named Phelps's two daughters, Rebekah Phelps-Davis and Shirley Phelps-Roper, as additional defendants. Two months later, Phelps-Davis and Phelps-Roper filed a motion to dismiss and for summary judgment on grounds similar to their father's September 2006 motion. The Court denied this motion in June 2007.

Although the record is not entirely clear, it appears that the defendants renewed their motions for summary judgment, and, on October 15, 2007, the Court granted summary judgment for the defendants on the defamation claim and the invasion of privacy claim based on publication of private facts. The court announced its decision in open court, commenting that “These comments — as extreme as they may be — they are taken in terms of religious expression. This is not the type of language that one is going to assume is meant as a statement of fact.” The decision was memorialized in an October 16, 2007 order.

The jury trail commenced on October 22, 2007 to hear the remaining counts of invasion of privacy (intrusion upon seclusion) and intentional infliction of emotional distress. On October 31, 2007 the jury handed down a $10.9 million verdict against the defendants. This figure is made up of $2.9 million in compensatory damages, $6 million in punitive damages for invasion of privacy, and $2 million in punitive damages for causing emotional distress. After the verdict, Fred Phelps indicated his intent to appeal to the Fourth Circuit Court of Appeals.

The defendants' practice of protesting at the funerals of fallen soldiers is infamous, and Congress passed a federal statute on May 29, 2006 that prohibits protests of the sort involved in this case. The Kansas legislature approved a similar prohibition in April 2007.

Update:

February 4, 2008: Judge Bennett granted in part Defendants' motion for remittitur and cut the jury award down to $5 million, Applying both federal constitutional and state common law standards, he left the jury's compensatory damage award of $2.9 million intact but reduced the total punitive damages to $2.1 million.

 

[Laura]

This is a policy page on the website sued in the case reported above Global Royalties v. Xcentric Ventures

Want to sue Ripoff Report?

Can I get false reports removed?

Do you really want to sue Ripoff Report?

You should read this information before filing a lawsuit against Ripoff Report or the Founder ED Magedson.

There’s a false report about me on this site!!! What can I do?

Have you or your business been the subject of a Ripoff Report which you believe is false? Do you believe that a competitor of yours posted a fake report to try to harm your business? Are you considering filing a lawsuit against Ripoff Report to try to have reports removed from the site?

If you answered 'yes' to any of these questions, you really need to read the following information first.

From time to time, the Ripoff Report receives notices from companies and individuals who claim that false or inaccurate information about them has been posted on this site. These people sometimes threaten to sue Ripoff Report for defamation and other similar claims unless the statements they do not like are removed. You need to understand that these threats are not effective, nor will they result in the removal of any reports. Here's why.

Ripoff Report's Policy: Why We NEVER Remove Reports

As is our policy, we never remove reports even when they are claimed to contain defamatory statements, and even if the original author requests it.

The reason for this policy is simple—this site is only effective when all complaints are maintained and preserved so that over time patterns of truly bad business practices are exposed. If we removed complaints this would give companies an incentive to pressure authors (or us) to remove true and accurate reports in exchange for money or simply to avoid a costly lawsuit. For that reason, we will never agree to remove reports, even if someone can show that a report is probably inaccurate. Under this policy, no reports are ever removed, so there is no benefit to companies who threaten or pressure a customer hoping to get them to retract a valid complaint. Even if this means that one or more questionable reports are left up, we think that removal of any reports would ultimately make this site less credible and thus less effective as a tool for educating consumers. That's why we have made this strict policy decision.

But what if the original author asks us to remove a report? Why doesn't Ripoff Report have to take a report down when the author requests this?

There are two reasons why Ripoff Report does not remove reports even if the original author has asked us to do so. The first is the same as stated above -- as a matter of policy, Ripoff Report does not want to encourage big companies to bully individuals into asking us to remove their truthful reports. So, we simply will not agree to remove reports, ever, thus eliminating that incentive.

Second, every time a report is submitted to us, the author must read and agree to the following terms (under "Step 6 - Submit Report"): "By posting this report/rebuttal, I attest this report is valid. I am giving Ripoff Report irrevocable rights to post it on this web site. I acknowledge that once I post my report, it will not be removed, even at my request. Of course, I can always update my report to reflect new developments by clicking on UPDATE."

If a user does not agree to these terms, as they are free to do, then Ripoff Report will not allow the report to be published. Again, the reason for this is not to be unfair to anyone, it is simply our view that this website is more reliable and trustworthy when all reports remain open for public review. So, we do not remove reports even if the original author asks us to, and this is clearly explained to everyone BEFORE they submit their report.

If even one truthful report was removed because a company pressured an author to ask us to remove it, that would undermine the service this website provides. For that reason, we do not remove reports, no matter what you may have heard. In fact, there is absolutely no truth to the rumor that we have removed reports for money. Ask anyone for proof that reports have been removed and guess what – they won't have any.

We've Been Sued Many Times, But Have NEVER Lost a Case; Here's Why

Because we will not remove reports, Ripoff Report has been sued on several occasions based on the content which our users have created and posted. If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys.

The CDA is part of our federal laws. An excellent Wikipedia article discussing the history of the law can be found here. http://en.wikipedia.org/wiki/Communications_Decency_Act

In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material. Specifically, 47 U.S.C. § 230(c)(1) states, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Because the reports on Ripoff Report are authored by users of the site, we cannot be legally regarded as the "publisher or speaker" of the reports contained here, and hence we are not liable for reports even if they contain false or inaccurate information.

The reasons for this rule are simple. Websites cannot possibly monitor the accuracy of the huge volume of information which their users may choose to post. If a disgruntled plaintiff were permitted to hold a website liable for information that the site did not create, this would stifle free speech as fewer and fewer sites would be willing to permit users to post anything at all. See generally Batzel v. Smith, 333 F.3d 1018, 1027–28 (9th Cir. 2003) (recognizing, "Making interactive computer services and their users liable for the speech of third parties would severely restrict the information available on the Internet. Section 230 [of the CDA] therefore sought to prevent lawsuits from shutting down websites and other services on the Internet.")

In general, each and every lower federal district court and federal appellate court that has construed the CDA has held that websites like Ripoff Report are immune from virtually every type of civil liability when the site has been sued based on information posted by a third party. See Doe v. America Online, Inc., 783 So.2d 1010 (Fl. 2001); Green v. America Online, 318 F.3d 465, 470 (3rd Cir. 2003) (noting that the CDA, "‘precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone, or alter content.'"); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003); Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash.App. 2001); Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Blumenthal v. Drudge, 992 F. Supp. 44 (D. D.C. 1998).

So, why should you care about this law? Well, if someone posts false information about you on the Ripoff Report, the CDA prohibits you from holding us liable for the statements which others have written.

<snipped stuff>

If you have read all of the above information and still want to file a lawsuit against us, there are some other points you need to know.

First, Rule 11 of the Federal Rules of Civil Procedure, and each state court's rules, generally require that all pleadings, including initial Complaints, must be presented in good faith, after a reasonable investigation into the facts and the law, and not made for an improper purpose such as harassment. What this means in plain English is that if you file a lawsuit which you know contains false claims, or if you sue without first conducting a reasonable investigation as to the law as it may pertain to the facts of your case (such as determining the identity of the author of the report(s) you are concerned about), you and/or your attorney can be subject to serious sanctions at the judge's discretion. Many who have sued settled with us and some have paid some or all of our attorney's fees. Other times we have defended the cases for years running up large legal bills for both sides. Either way, we never paid out a dime in settlement or damages to anyone who has sued us.

In addition to penalties a judge may issue, those who would threaten us need to be aware of another law which imposes civil liability on anyone who files a frivolous lawsuit. This claim is known as "wrongful use of civil proceedings" and it is defined by § 674 of the Restatement (Second) of Torts as follows:

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if:

(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and

(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

Because Ripoff Report is immune from liability under the CDA for defamation-based and related claims, any suit that seeks to impose liability for the speech of our users is, by definition, an action brought "without probable cause".

We encourage the prompt and fair resolution of disputes between Ripoff Report authors and those who are the subject of Ripoff Reports. However, Ripoff Report wants to be clear that it accepts no liability for the speech of its users, and it will vigorously defend any litigation brought against us which seeks to circumvent the CDA. In addition, any suit filed against us without probable cause may subject the complaining party and/or their attorneys to liability in the State of Arizona for wrongful use of civil proceedings. We don't mean to sound harsh, but if you knowingly file a frivolous lawsuit against us, regardless of where your case is filed, you and/or your lawyers can be subject to a lawsuit in Arizona in which a jury could, if appropriate, award both substantial compensatory and punitive damages against you.

Finally, you need to be aware that if you file a lawsuit simply to harass us, not only will this not work, it will very likely end up being EXTREMELY expensive for you. Due to the number of meritless cases we have had to defend, Ripoff Report has adopted a very strict policy about lawsuits -- once Ripoff Report is forced to appear in a case, it will not stipulate to a dismissal of the case unless the party who filed the action agrees to pay Ripoff Report's attorney fees. There will be no exceptions. If you conduct a thorough investigation BEFORE you sue and you believe you have a valid case despite the CDA, it is your right to pursue your case and prove it in court. However, once you file a lawsuit, be prepared to either take it all the way to a decision on the merits or pay Ripoff Report's attorney fees because Ripoff Report will not stipulate to a dismissal without compensation.

Now, do you really want to sue Ripoff Report?

Sounds like he's been through this a time or two!

 

[PepperFritz]

I found the following postings on forum.rickross.com, by a 22-year-old "student" of Pepin's. They are so disturbing on so many levels....

I have been a student of the HigherBalance Institute for almost 2 years now. Having met Eric and all of his personal students/ staff on 2 retreats, I can only say that he is a very kind and warm "person".

I had never meditated before in my life. I did some Reiki stuff and after I asked God, within myself, for the truth, I ran into a student of Eric. I read the Handbook of the Navigator, and it provided me the knowledge that I needed. I decided to give the system of meditation a try. I was not looking for profound experiences, I was looking for truth. It was darn hard in the beginning, but somehow I knew I had to go on.

One day I woke up and I looked at my TV, I saw it standing there, but I also felt it standing there. So yes, Sixth sense had kicked in. This was the beginning of many profound experiences.

Yes, I meditate 2 times a day, practice different techniques daily. Practicing the material has changed me. I have improved myself Physically, Emotionally and Intellectually. Further more, I have gained ability's which allow me to experience life on a whole different level.

I love life, and do I think of enlightment? No, I do not care if I become enlightent or not. I will serve the greater, that is all I want. I love the Force.

I am more emotionally centered then Mind centered. You do not have to be a rocked scientist to become enlightent, the way to enlightment is a path of the Heart.

My two cents on the Sex case:
I have been with Eric on a couple of ocassions, HBI is found Not Guilty on all charges. I know for a fact that they turned his life around and found NOTHING. Not even a single PORN picture, NOTHING. It costed him a year of his life, much emotional struggle and a lot of money went down the drain. Money that could have been well used for the future. Money that could have helped other people.

And even if he was found guilty. Personally, I do not care. You can not deny the knowledge, and I do not deny my personal experiences with him.

In response, the Moderator asks:

So you think that it is OK when Eric Pepin has sex with his students?

The student replies:

I think that you can have sex with anyone you want if that person agrees with it and if the law states that it is OK ( read Age ). Now for the teacher - student scenario, I think you can apply the same rules. The motivation of course may differ.

Say that you want to increase your spirituality, and sexual activity is a way to achieve this, then there you have your motivation. Now if you are open to this kind of experience, got the lawful age, and you and your teacher agree with each other, then why not?

The Moderator then asks:

How could having sex with Eric Pepin "increase your spirituality"?

The student did not (could not?) answer that question.

 

[Laura]

http://www.citmedialaw.org/resources/primer-section-230-communications-decency-act

Primer on Immunity and Liability for Third-Party Content Under Section 230 of the Communications Decency Act

This primer provides some brief background on section 230 of the Communications Decency Act ("CDA 230") and highlight the types of claims and online activities it covers as well as the types of activities that might fall outside CDA 230's immunity provisions.

Publisher and Distributor Liability

Before I discuss the ins and outs of CDA 230, however, I want to highlight the difference between publisher and distributor liability. Under standard common-law principles, a person who publishes a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this "publisher" liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.

Distributor liability is much more limited. Newsstands, bookstores, and libraries are generally not held liable for the content of the material that they distribute. The concern is that it would be impossible for distributors to read every publication before they sell or distribute it, and that as a result, distributors would engage in excessive self-censorship. In addition, it would be very hard for distributors to know whether something is actionable defamation; after all, speech must be false to be defamatory.

Not surprisingly, the first websites to be sued for defamation based on the statements of others argued that they were merely distributors, and not publishers, of the content on their sites. One of the first such cases was Cubby v. CompuServe, Inc., 776 F.Supp. 135 (S.D.N.Y. 1991). CompuServe provided subscribers with access to over 150 specialty electronic "forums" that were run by third parties. When CompuServe was sued over allegedly defamatory statements that appeared in the "Rumorville" forum, it argued that it should be treated like a distributor because it did not review the contents of the bulletin board before it appeared on CompuServe’s site. The court agreed and dismissed the case against CompuServe.

Four years later, a New York state court came to the opposite conclusion when faced with a website that held itself out as a "family friendly" computer network. In Stratton Oakmont v. Prodigy, 23 Media L. Rep. 1794 (N.Y. Sup. Ct. 1995), the court held that because Prodigy was exercising editorial control over the messages that appeared on its bulletin boards through its content guidelines and software screening program, Prodigy was more like a "publisher" than a "distributor" and therefore fully liable for all of the content on its site.

The perverse upshot of the CompuServe and Stratton opinions was that any effort by an online information provider to restrict or edit user-submitted content on its site faced a much higher risk of liability if it failed to eliminate all defamatory material than if it simply didn’t try to control or edit the content of third parties at all.

Passage of the Communications Decency Act

This prompted Congress to pass the Communications Decency Act in 1996. The Act contains deceptively simple language under the heading "Protection for Good Samaritan blocking and screening of offensive material":

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

CDA 230 further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."

So is an "interactive computer service" some special type of website? No. For purposes of CDA 230, an

"interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.

Most courts have held that through these provisions, Congress granted interactive services of all types, including blogs, forums, and listservs, immunity from tort liability so long as the information is provided by a third party.

As a result of CDA 230, Internet publishers are treated differently from publishers in print, television, and radio. Let's look at these difference in more detail.

Claims Covered by CDA 230

CDA 230 has most frequently been applied to bar defamation-based claims. In the typical case, a plaintiff who believes she has been defamed sues both the author of the statement and the website that provided a forum or otherwise passively hosted the material. Courts have held with virtual unanimity that such claims against a website are barred by CDA 230.

But immunity under CDA 230 is not limited to defamation or speech-based torts. Courts have applied CDA 230 immunity to bar claims such as invasion of privacy, misappropriation, and most recently in a case brought against MySpace (Doe v. MySpace, 474 F.Supp.2d 843 (W.D. Tex. 2007)), a claim asserting that MySpace was negligent for failing to implement age verification procedures and to protect a fourteen-year old from sexual predators.

I should note, however, that CDA 230 explicitly exempts from its coverage criminal law, communications privacy law, and "intellectual property claims." In interpreting these exclusions, courts agree that Congress meant to exclude federal intellectual property claims, such as copyright and trademark, but they disagree whether state-law intellectual property claims (or claims that arguably could be classified as intellectual property claims, such as the right of publicity) are also exempted from the broad immunity protection CDA 230 provides.

Finally, CDA 230 does not immunize the actual creator of content. The author of a defamatory statement, whether he is a blogger, commenter, or anything else, remains just as responsible for his online statements as he would be for his offline statements.

Online Activities Covered by CDA 230

Courts have consistently held that exercising traditional editorial functions over user-submitted content, such as deciding whether to publish, remove, or edit material, is immunized under CDA 230. As one moves farther away from these basic functions, immunity may still exist, but the analysis becomes more fact-specific. While the case law addressing some of these activities is still developing, generally speaking CDA 230 provides immunity for the following actions:

* Screening objectionable content prior to publication. This is the quintessential activity that CDA 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site.

* Correcting, editing, or removing content. A website operator may take an active role in editing content, whether for accuracy or civility, and it will still be entitled to CDA 230 immunity so long as the edits do not substantially alter the meaning of the content (i.e., make an otherwise non-defamatory statement defamatory). In an interesting case involving New Jersey politics, Stephen Moldow ran a website and forum where users criticized local elected officials. Muldow regularly deleted offensive messages, gave guidelines for posting, and edited and re-posted messages to remove obscenities. Although the plaintiffs argued the Moldow participated in the creation of the defamatory content and should therefore be held liable, the court concluded that Moldow’s activities were nothing more than the exercise of traditional editorial functions and thus immunized under CDA 230. Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).

* Soliciting, encouraging, or selecting content for publication. Two cases illustrate the scope of this immunity. In Corbis Corporation v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004), the court immunized Amazon.com from Washington State Consumer Protection Act and tortious interference with business relations claims even though Amazon solicited and encouraged third parties to post images and other content on its site. And in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court granted immunity to a museum administrator who selected, edited, and then published on the museum's listerv and website emails he had personally received that claimed Batzel possessed paintings looted by the Nazis during WWII.

* Paying a third party to create or submit content. So long as the author of the material is not your employee (typically a question of state agency law), you will not lose CDA 230 immunity if you pay for the content. One of the first cases to test this involved Matt Drudge, who in the late nineties received all of his income from AOL, which paid him for his popular gossip column and exercised "certain editorial rights with respect to the content." When Sydney Blumenthal sued Drudge and AOL for defamation, the court concluded that the payments to Drudge did not make him an AOL employee nor did they make AOL responsible for his postings and held that CDA 230 immunized the service. Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).

* Providing forms or drop-downs to facilitate user submission of content. Most courts have held that a website will not lose immunity if it facilitates the submission of user content through forms and drop-downs. For example, in a case involving Matchmaker.com, a B-list actress sued the operator of the site after a user created a fake profile that listed her name and home address and indicated an interest in finding a sexual partner. The Ninth Circuit Court of Appeals held that the website was immune from the actress' claims of invasion of privacy, misappropriation, defamation, and negligence, noting that while "the questionnaire facilitated the expression of information by individual users[,] the selection of the content was left exclusively to the user." Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). (As I discuss below, a recent decision by another panel of the Ninth Circuit casts some doubt on the Carafano decision. See Fair Housing of Council of San Fernando Valley v. Roommates.com.) In a similar case involving a publisher of business databases, an anonymous user used an entry form to submit false information about David Prickett and his wife indicating that they were in the adult entertainment and lingerie business. The court rejected the Pricketts' argument that infoUSA should lose its immunity because it helped create the information by supplying a form and drop-down boxes, concluding that it was the anonymous third party who actually made the choice and submitted the information. Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006).

* Leaving content up after you have been notified that the material is defamatory. CDA 230's immunity provisions do not require that you remove content from your site after you have been notified that that material is defamatory. In the well-known Zeran v. America Online case, an AOL user posted messages purporting to offer for sale items that supported the Oklahoma City bombing and falsely included Kenneth Zeran’s contact information. Despite Zeran’s repeated demands that AOL take down the messages, they remained on the site until he filed a lawsuit. In an early test of CDA 230's scope, the U.S. Court of Appeals for the Fourth Circuit held that CDA 230 immunizes interactive computer services even if they have been notified that the material is defamatory. See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

Online Activities Not Covered by CDA 230

While most courts have held that CDA 230 grants interactive computer services broad, expansive immunity, this recognition often comes with some reluctance by the courts. Occasionally courts try to find ways around the broad immunity grant of CDA 230. Early on, most courts that tried to hold service providers liable were trial courts that eventually found themselves reversed on appeal.

Lately, however, some appellate courts have been willing to limit CDA 230's immunity. This has primarily involved two types of activities by online publishers:

* Editing of content that materially alters its meaning. If you edit content created by a third-party and those edits make an otherwise non-defamatory statement defamatory, you will likely lose your immunity under CDA 230. Where this line is, however, remains unclear. Obviously, if you remove the word "not" from a sentence that reads "Jim Jones is not a murderer," you will have substantially altered the meaning of the sentence and made an otherwise non-defamatory statement defamatory.

* Engaging with users through drop-down forms to create discriminatory content. In a case that appears to be in direct conflict with the Carafano decision mentioned earlier, the Ninth Circuit Court of Appeals held that Roommates.com was not immune from claims under the Fair Housing Act and related state laws because it "created or developed" the forms and answer choices that those seeking to use the service had to fill out. For example, anyone seeking a roommate had to provide information about themselves, such as “male” or “female,” and indicate who else lived in the house (e.g., “straight males,” “straight females,” “gay males,” or “lesbians”). All prospective users had to choose from a drop-down menu to indicate whether they were willing to live with “straight or gay males,” only “straight males, only “gay males,” or “no males” and had to make comparable selections pertaining to females. In a fractured opinion, the court reasoned that by requiring members to answer questions, Roommates.com was essentially causing users to make discriminatory statements. In addition, the court held, Roommates.com also bore liability because it permits users to search the profiles of other members with certain compatible preferences (e.g., search only for females with no children). Fair Housing of Council of San Fernando Valley v. Roommates.com, CV-03-09386-PA (9th Cir. 2007). The Ninth Circuit recently agreed to rehear this case en banc, so we can expect some clarification, or a possible reversal, soon.

Conclusion

It has now been more than ten years since Congress enacted section 230 of the Communications Decency Act. During that time courts have held that CDA 230 grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. Relatively few court decisions, however, have analyzed the scope of this immunity in the context of "mixed content" that is created jointly by the operator of the interactive service and a third party through significant editing of content or the shaping of content by submission forms and drop-downs. Accordingly, this is an area that we will be watching carefully and reporting on in the future.

So what are the practical things you can take away from this discussion? Here are five:

1. If you passively host third-party content, you will be fully protected under CDA 230.

2. If you exercise traditional editorial functions over user submitted content, such as deciding whether to publish, remove, or edit material, you will not lose your immunity unless your edits materially alter the meaning of the content.

3. If you pre-screen objectionable content or correct, edit, or remove content, you will not lose your immunity.

4. If you encourage or pay third-parties to create or submit content, you will not lose your immunity.

5. If you use drop-down forms or multiple-choice questionnaires, you should be cautious of allowing users to submit information through these forms that might be deemed illegal.

 

[NormaRegula]

The Chilling Effects website, (http://www.chillingeffects.org/) a joint venture with the EFF (Electronic Frontier Foundation) and several law schools, catalogs bullying "
"Cease and Desist" suits similar to this one. Might be worth a look.

 

[PopHistorian]

Looked at search hits and thought these were noteworthy.

Sites carrying the SOTT lawsuit story so far:
- Newsvine: _http://www.newsvine.com/higher-balance-institute
- Reddit.com: _http://reddit.com/user/keit_shifter
- DIGG: _http://digg.com/odd_stuff/small_alternative_news_website_sued_for_4_5million
- Topcala: _topicala.com/tag/net

Links that also mention or reprint the sexual misconduct story, the acquittal, the eventual clearing, or some reference to one or the others:
- Google Group "Searching for Higher Consciousness" posting, 2006 _http://groups.google.com/group/searching-for-higher-consciousness/browse_thread/thread/fc4f606357987014
- Safe Passage Foundation, 2006 _http://children.safepassagefoundation.org/archives/2006/07/index.html
- Safe Passage Foundation Sexual Abuse Archives _http://children.safepassagefoundation.org/archives/childrens_rights/sexual_abuse/index.html
- Worldwide Religious News, 2006 _http://www.wwrn.org/article.php?idd=22201&sec=55&con=4
- Worldwide Religious News, 2007 _http://www.wwrn.org/article.php?idd=25188&sec=55&con=4
- Religion News Blog, 2006 _http://www.religionnewsblog.com/15312/eric-j-pepin-the-head-of-wh...-former-underage-follower
- Cult Awarneness Network Forum (Rick Ross, good grief, but a suit-worthy posting back in Feb. 2008) _http://forum.rickross.com/read.php?5,33575,53408
- Rick Ross again, 2006 _http://www.rickross.com/reference/general/general841.html
- Advocate.com, 2007 _http://www.advocate.com/print_article_ektid45457.asp
- StumbleUpon.com, Sexual Predators in the Religious Scene, Jan. 2008 _http://www.stumbleupon.com/demo/? and _http://hoangmphung.stumbleupon.com/tag/higher-balance-institute/review=1#url=http://whiletheearthrumbles.blogspot.com/2008/01/sexual-predators-in-religious-scene.html
- RelionNews Blog, 2007 _http://www.religionnewsblog.com/18401/eric-james-pepin
- The Steel Magnolia blog, Eric Pepin and Higher Balance Institute: Front For Sexual Predators?, Feb. 2008 _http://steelmagnolia.blogsome.com/
- Guruphiliac bloc, Master Eric Messes Up, 2006 _guruphiliac.blogspot.com/2006/07/master-eric-messes-up.html
- Guruphiliac, Master Eric Gets Off, 2007 _http://guruphiliac.blogspot.com/2007/05/master-eric-gets-off.html
- California Newswire Feb. 2008, _http://californianewswire.com/2008/02/20/CNW1039_010631.php
- BeliefNet, 2006 _http://www.beliefnet.com/boards/message_list.asp?pageID=2&discussionID=494675&messages_per_page=4
- Newsblaze.com 2008, _http://newsblaze.com/story/2008021911330300001.sp/newsblaze/SENDPRES/Send2Press.html
- Send2Press.com 2008, _www.send2press.com/newswire/2008-02-0219-003.shtml
- Oregon Live blog 2007, _blog.oregonlive.com/breakingnews/2007/05/leader_of_washington_county_in.html
- ATS blog posts, 2007 _http://www.abovetopsecret.com/forum/thread317085/pg#pid3775761
- ENews Channel, 2008 _http://enewschannels.com/2008/02/21/enc2652_015341.php
- An interesting mention was apparently on this page, but I can't find it ("... asked if his company, Higher Balance, is a cult, Pepin said, "What I offer are ... was ever found showing Pepin, Priebe and Young in any sexual act and that no ...") _http://www.rojo.com/add-subscription?resource=californianewswire.com/feed
- Make Your Life Magic discussion forum, (suggests Googling "eric pepin sex", 2007 _http://www.xtrememind.com/phpbb/viewtopic.php?p=28633
- Oregon Live _http://www.oregonlive.com/printer/printer.ssf?/base/news/1180117415132800.xml
- Unexplained Mysteries Discussion Forums 2006 _http://www.unexplained-mysteries.com/forum/index.php?showtopic=73204&st=45 and _http://www.unexplained-mysteries.com/forum/index.php?showtopic=73204&pid=1475114&mode=threaded&start=
- LearningStrategies.com is about HBI, doesn't mention the Pepin case, but one writer interestingly mentions that he was dubious of Pepin because *other* similar "masters" he has encountered were said to be sexual predators. _http://www.learningstrategies.com/forum/printthread.php?Cat=0&Board=UBB6&main=58973&type=thread and _http://www.learningstrategies.com/forum/showflat.php?Cat=0&Board=UBB6&Number=58973&page=5&fpart=2
- BraveNet forum 2006 _http://pub2.bravenet.com/forum/116374034/show/250201
- There's something, apparently, on this video site, if you register: _www.videosear.ch/tag/Higher

He's listed as a guest at one time on the X Zone Radio show. Maybe someone can find an archive of it? _http://xzone-radio.com/guests.htm

Pepin is on some kind of podcast linked here: _http://www.pod-planet.com/index.asp?search=1&searchword=Earls

Found this site boardreader.com that allows searching across discussion forums, though I didn't explore it throoughly.

 

[purplehaze]

Moderator wrote:

How could having sex with Eric Pepin "increase your spirituality"?

>>The student did not (could not?) answer that question.<<

Priceless. The non-answer is an answer in itself.

 

[anart]

Moderator wrote:

How could having sex with Eric Pepin "increase your spirituality"?

>>The student did not (could not?) answer that question.<<

Priceless. The non-answer is an answer in itself.

Yes, it's the oldest story in the book - spiritual predators using sex for control and exploitation and masking it as a 'spiritual practice'. Sickening, really.

 

[CarpeDiem]

HBI / Pepin's asscociated sites:

_www.dimensional-meditation.com
_www.higherbalance.com
_www.hbidynamics.com
_www.hbinavigators.com
_www.ericpepin.com
_www.navigatorhandbook.com
_http://www.podcastblaster.com/directory/podcast-33910.html - Pepin’s podcasts
_www.infinite-aspirations.com
_www.abundance-and-happiness.com/eric-pepin.html
_www.bendinggod.com/
_www.universallawstoday.com/ebooks/nav.pdf – Pepin’s Handbook of Navigator, pdf gratis
_http://www.courseinmiracles.us/links.htm

Eric_developer of psychic pill Magneurol6-S:
_http://www.psychicpill.com/esp_pill_faq.html#15
_www.magneurol.com/pildora_psiquica_faq.html
_http://www.skepchick.org/6.15.06/antidote.html (Magneurol / Pepin’s AD, likely by himself)

Eric Pepin’s associates:
Matt Struve
Daniel Tanguay
Eric Robinson

Pepin's private defence attorneys:
Sam Kauffman.
Stephen A. Houze,
_http://www.oregonlive.com/special/terror/index.ssf?/special/oregonian/terror/081003.html – most descriptive article on Houze

_http://www.baardwilliams.com/ - on Initiatory experience with Eric Pepin and HBI, night ghosts hunting experience on the cemetories; pretty descriptive narrative, (I saved info just in case)

_http://newconnexion.net/article/05-06/Eric_Pepin.html Eric Pepin interviewed by Miriam Knight

_http://www.rojo.com/feed/hQCDpTc98osO-xI3?m=1 HBI Multi-Dimensional Consciousness spiritual retreat ad
_http://www.astralsociety.com/as/Forum/index.php?topic=21664.0 _HBI Hawai spiritual retreat experience / ADS?

_http://blog.myspace.com/11927656 one blogger’s thoughts on HBI (HBI could be either Pepin or Higher Builders Institute, that’s unlikely though)

2006:
it's been a lovely beginning. lovely and fairly well demarcated, not just slipping in like a fucking slup of mud, shapeless and sort of distasteful. it's had a soundtrack, a partner, a team... and a fairly continuous sense of wellbeing […] I'm sure, like my recent fixation on beautiful masculinity. it's so funny to have a crew of fabulous straight men in my life, and I wonder how my relationships with them, expectations of them, have been shaped by the fabulous fag crews in my life. and I wonder how much the intense HBI experience last year changed these things... and i wonder how much longer i can blabber on like this. ha!

_http://esotericvoyage.com/blog/2007/09/ _ HBI / Pepin (ad)
_http://esotericvoyage.com/blog/be-the-spider/ _HBI / Pepin (ad)
_http://esotericvoyage.com/blog/energetic-broadcast-of-emotions/ _HBI / Pepin (ad)

 

[purplehaze]

Yes, it's the oldest story in the book - spiritual predators using sex for control and exploitation and masking it as a 'spiritual practice'. Sickening, really.

Wonder how long it will be before one of his "willing students" charges him with coercion and/or rape?

 

[RedFox]

For what its worth, the only things I can find about getting hold of the transcript is to actually go to the court house/post a cheque/call the court house
_http://www.ojd.state.or.us/wsh/Records.htm
Seems others effected by eric have been trying to get hold of the transcript aswell _http://forum.rickross.com/read.php?5,33575,page=2

Well, hopefully, one of the forum members who is local to that court will take it upon him or herself to get the transcripts and send them on.

Anyone able to get to Washington County Courthouse???
Alternatively, anyone know if UK cheques would be accepted in the US? (or how I could send something from the UK they'd accept)

I'm quite willing to do this if no one else can, and it would be of use to Laura.

Does anyone have an access to actual pdf of Pepin's court case #C061748CR? References to number are plentiful, but hearings / proceedings / pleading for a civil suit pdf - i can't locate anywhere. Accessing material transcripts would be the best. At least pdf should have appeared on _http://www.courthousenews.com. Zilch.

I presume that a copy of the complete file ordered from the court would contain all of those?

 

[dant]

I have sent a private message to sott.net offering to help out
since I live not far from the WC courthouse (5-10 miles?), but
have not received a response as of yet.

Please tell me exactly what you are looking for so that I can
stop by there and obtain the relevant documents you seek.

Depending on the document received, I am not sure if this doc
can be publically made available so in that case, I will simply
send it to Laura if need be and let her handle it?

 

[Laura]

As of today, we have someone who has already ordered the court transcripts and hard copy images of the newspaper stories are also in the pipeline.

Thanks to all who wrote and offered help! As you might guess, I'm a bit overwhelmed with emails and trying to catch up!

 

[dant]

Ok, thanks for the note, for all of us, Laura/Ark/SOTT/QFC. I stand by
my offers.