Monday, January 21, 2008

EBay gets to the point..

BBC Radio Oxford have kindly informed me of concern by Oxford MEP Nirj Derva about the sale of flick knives on eBay to UK teens.

"Nirj Deva MEP has called on the internet auction site EBay to ban the sale of flick-knives online, following a dramatic increase in street crime in the UK.

...Whilst it is illegal for those under the age of sixteen to buy knives, a five-second search for the word "flick knife" on offers visitors, without any form of background or age check, the chance to buy a range of 3.75 inch Buck Protege serrated flick-knives. All "flick knives" with a blade of in excess of 3 inches are illegal under British law. "

Indeed. Under the Restriction of Offensive Weapons Act 1959, s 1 as amended in fact. It is an offense already to sell, offer for sale or expose for sale flick knives in the UK. So why do we need new laws for eBay?

Well, according to concerned MEP Deva, because although eBay UK have flick knives on their list of banned sale items, in fact you can instantly find these items on nonethless. In fact on a cursory glance as of today , 21/1/08, a search on "flick knives" on gave a zero result, not surprising as "flick knives" sub nom "switchblade knives" are one of the items banned on

However the page conveniently points you at the bottom to results that CAN be found -on in the USA. In fact although only two items were so indicated when Pangloss went to look, a quick direct search on reveals many thousands of knives that look prohibitively scarey for sale to rampant UK teens (the US term of art appearing to be more often "buck" knives than "flick" knives).

The real questions which arise out of this latest apparent attempt to hit the headlines are twofold.

First, can the UK effectively legislate for in the USA? Basically, no. Well, no, in strict law; but yes the bad PR might have an effect on US ebay prohibited listings rules (though Pangloss doubts it; and in any event US eBay already bans some forms of knives which may or may not correspond directly to UK flick blades but are damn like them - "switchblades" (which are "any knife having a blade which opens automatically (1) by and pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.") and "butterfly knives".) .

We have been here before of course, with Yahoo!, the French government and Nazi memorabilia. (Moral panics have no memory - maybe we need a directory of them, just as we have for urban myths?) The end of the Yahoo! saga was that Yahoo! (and in fact ebay) chose to ban the sale of Nazi paraphernalia to restrict bad press, in the US as well as in Europe. But how much of a result is that in more than symbolic terms??

We all know that eBay (.com or "banning" an item effectively means very little. Items can be hidden in more general categories of listings (eg "folding knives") or under synonyms, and eBay does not appear to police its listings other than automatically restricting certain listings under banned categories. Right now, eg, although "flick knives" gets you zero results on, "buck knives", the US term, gets you 50 results.

The second real issue underlying here is if duties should be placed on eBay to take pro active policing (or "filtering") action, without which liability will be imposed - or if , as at present, eBay's liability should be restricted to arising only if it fails to take action on notice and take down. See passim on this blog, discussion of the E-Commerce Directive, Arts 12-15 and the puzzling question of their applicability to UGC sites like eBay.

Art 14 of the EC Electronic Commerce Directive as implemented in the UK by the 2002 Regulations of the same name, reg 19 states that:

"Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or ... for any criminal sanction as a result of that storage where -

(a) the service provider -
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and

(b) the recipient of the service was not acting under the authority or the control of the service provider.

Thus as regards criminal liability under the 1959 Act for "sale" or "exposure" of flick knives, eBay cannot it seems , be found liable "for any criminal sanction as a result of that storage" unless it has received actual notice - a reactive NTD paradigm. Whether this is right or not in ethics, it appears to be the law. (a really interesting question might be if a victim of a flick knife attack claimed civil damages against eBay for breach of duty under the 1959 attack. Pangloss does not know enough about the English law of title to sue in statutory duties, let alone causation, to follow that one further..)

A final interesting issue is if eBay is indeed the person doing the "sale" or "exposure for sale" under the 1959 Act. As in the previous contact lens dispute, it might well be argued by eBay that the "person" who should be criminally liable is each individual seller, not eBay the intermediary platform. Again the ethics - as well as the efficacy - if not the strict law of this result may be questioned.

However there would seem to be little Parliament can do about it until and unless the E Commerce Directive is amended in its upcoming review.

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