Pangloss is pretty bushed after the excellent SCL Policy Forum (thanks to co-chairs Chris Reed, Judith Rauhofer, and gracious hosts Herbert Smith) but just has to bring this breaking news; the Advocate General's opinion has come out (via Joris Hoboken), in the hotly awaited ECJ reference in Luxury Brands plc (OK, see real parties below) vs Google, on whether Google is liable for trademark infringement as a result of its keyword based "AdWords" service. The meat of the opinion is that Google is not liable for selling keywords to advertisers which correspond to trade marks owned by others, since the use of the TM, such as it is, is restricted to the relationship between Google and the advertiser, and is not aimed "outwards" at the user, thus not causing customer confusion.
TM lawyers will have plenty to say on that part but for Pangloss, the real excitement is what this says about search engines as immune or liable intermediaries under the EC Electronic Commerce Directive. The AG opinion (available in full now, since I started writing!) is not binding on the court but often predicts the likely result :
Advocate General’s Opinion in Joined Cases C-236/08, C-237/08 and C-238/08
Google France & Google Inc. v Louis Vuitton Malletier, Google France v Viaticum & Luteciel and Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin & Tiger, franchisée Unicis
"..Mr. Poiares Maduro also rejects the notion that Google's actual or potential contribution to a trade mark infringement by a third party should constitute an infringement in itself. He opines that instead of being able to prevent, through trade mark protection, any possible use – including many lawful and even desirable uses –, trade mark owners would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trade marks. [bold added]
In this context, the Advocate General finds that both Google's search engine and AdWords constitute information society services. He adds that service providers seeking to benefit from a liability exemption under the E-Commerce Directive should remain neutral as regards the information they carry or host.[bold added]
However, whilst the search engine is a neutral information vehicle applying objective criteria in order to generate the most relevant sites to the keywords entered, that is not the case with Adwords where Google has a direct pecuniary interest in internet users clicking on the ads' links.
Accordingly, the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords."
Pangloss Sez: Wow that is interesting. So, it seems we have a clear and defiant rejection of the content industry-lead idea that IP holders can command online intermediaries - or just search engines? - to undertake prior blanket filtering to prevent alleged infringement of their rights. The context of AdWords is very different from that of Viacom v YouTube (for example) of course, but does this point to how we may see an upcoming ECJ reference panning out on liability of web 2.0 sites, like eBay, and in particular, whether they can be compelled by the likes of LVM to proactively filter out content, rather than run, as now, on a post factum notice and take down paradigm? See discusion of conflicting cases in US, Continental Europe and recently England on this controversial point, here.
On the other hand we also have a clear steer from the AG that where ISSPs like Google make money out of their "neutral" activities in hosting or linking to content by monetising them via connected advertising, they remain ISSPs but nonetheless become fair game for liability, and are no longer "neutral intermediaries". Would this mean that YouTube, who perhaps occasionally host IP infringing user generated content :-) and monetise this hosting via ads, could be commandedby a court to filter proactively, as opposed to simply wait for NTD; while, par contraire, eBay, who also sometimes host infringing content, but make their money from unconnected user commissions, not ads, would not be so susceptible and could continue to depend on expedient NTD to retain immunity?
Oh this is going to be fun :-)
Showing posts with label ebay. Show all posts
Showing posts with label ebay. Show all posts
Tuesday, September 22, 2009
Friday, May 22, 2009
EBay 3: Luxury Trade Mark Holders 2
Exciting breaking news from the IPKat that eBay have won their court case in the UK High Court , asserting that they are not liable for the trademark infringements of sellers on their site selling counterfeit goods. There are now three decisions in favour of eBay (UK, France and Belgium), one decision in favour of L'Oreal (Germany) and one decision (from Spain) still outstanding. The case is important to an understanding of how the immunities in Art 14 of the EC E-Commerce Directive operate in relation to "web 2.0" or user generated content sites. The case indicates that on both trade mark law and article 14, the issues will be referred to the ECJ for a clearer ruling.
The judgment is available here. It comes only weeks after a French court reversed a previous French ruling finding for eBay and against L'Oreal. Does this show a turning against the theory that UGC sites are "complicit" with the infringing activities of their users and not deserving of immunity under Art 14, since their revenue is derived in part from such activity and they may have constructive knowledge thereof? Pangloss has not had time to read the ruling properly yet but the relevant conclusions appear to be:
The judgment is available here. It comes only weeks after a French court reversed a previous French ruling finding for eBay and against L'Oreal. Does this show a turning against the theory that UGC sites are "complicit" with the infringing activities of their users and not deserving of immunity under Art 14, since their revenue is derived in part from such activity and they may have constructive knowledge thereof? Pangloss has not had time to read the ruling properly yet but the relevant conclusions appear to be:
"i) The Fourth to Tenth Defendants have infringed the Trade Marks. In the case of the Fourth to Eighth Defendants the goods they sold were put on the market outside the EEA and L'Oréal did not consent to those goods being put on the market within the EEA. In the case of the Ninth and Tenth Defendants the goods they sold were counterfeits.
ii) Whether the sale by sellers on the Site of testers and dramming products and of unboxed products amounts to an infringement of the Trade Marks depends upon questions of interpretation of the Trade Marks Directive as to which the law is unclear (see paragraphs 319-326 and 331-342 above). Although these questions are academic so far as the acts committed by the Fourth to Tenth Defendants are concerned, they are potentially relevant to the question of what relief, if any, L'Oréal are entitled to. Accordingly, guidance from the ECJ is required on these points.
iii) eBay Europe are not jointly liable for the infringements committed by the Fourth to Tenth Defendants.
iv) Whether eBay Europe have infringed the Link Marks by use in sponsored links and on the Site in relation to infringing goods again depends upon a number of questions of interpretation of the Trade Marks Directive upon which guidance from the ECJ is required (see paragraphs 388-392, 393-398 and 413-418 above).
v) Whether eBay Europe have a defence under Article 14 of the E-Commerce Directive is another matter upon which guidance from the ECJ is needed (see paragraphs 436-443 above).
vi) As a matter of domestic law the court has power to grant an injunction against eBay Europe by virtue of the infringements committed by the Fourth to Tenth Defendants, but the scope of the relief which Article 11 requires national courts to grant in such circumstances is another matter upon which guidance from the ECJ is required (see paragraphs 455-465 above).
Pangloss Sez: Looking to the mentioned paras 436-443 we find little but the conclusion that the Art 14 defense is not acte claire and that this is born out by the range of decisions in cases across Europe and existing references to the ECJ. There is some interesting discussion of the German Internet Auctions cases however. It looks as if we may have to wait for the ECJ to finally speak for more guidance though .
Thursday, May 14, 2009
France v eBay, part deux & the future of online intermediary immunity
France continues to be an entertaining source of Internet law. The Guardian reports (13 May 2009) that
"The world's largest online auctioneer, eBay, was today claiming a "victory for consumers" after a court in Paris ruled that it was not liable for counterfeit L'Oreal perfumes for sale on its website.
This is fascinating as yet another example of how completely the hosting immunity provisions of Art 14 of the EC E-Commerce Directive are failing to be interepreted in a harmonised manner across Europe. As the Guardian report notes, only a few months ago we saw a completely opposite ruling emerging from the French courts, which are regarded as the toughest courts in Europe on intermediaries "assisting" in IP violation (see eg previous DailyMotion and MySpace cases).
The problem is also not only about IP; in Italy, Google is being sued for allowing the posting of defamatory videos on its site, while in France also, several cases have held user-generated content sites liable for posting of private photos. Only in the UK, of the large commercial EU countries, are we yet to see a case holding a major web 2.0 intermediary liable in respect of user generated content.
The immunity provisions of the ECD in Arts 12-15 desperately need reviewed and reformed, yet the Comnmission shows no signs of wishing to initiate such a process. Pangloss, suprise, suprise, is currently rewriting her chapter on this whole area for Law and the Internet 3rd edn. My provisional conclusions are that a bright line of no liability on intermediaries for content provided by third party content providers, unless or until notice is given to take down (as in Art 14) can no longer be sustained.
We are seeing instead a move towards a new system, by court if not legislative creation, which
"The world's largest online auctioneer, eBay, was today claiming a "victory for consumers" after a court in Paris ruled that it was not liable for counterfeit L'Oreal perfumes for sale on its website.
The perfume and cosmetics company has taken legal action against eBay in four other countries, but today's ruling is a major victory in France for eBay, which was fined €38.6million (£34.7million) in a similar case against the luxury goods manufacturer LVMH (Moet Hennessy Louis Vuitton) group and €20,000 against Hermès. The ruling reflects a Belgian court's decision last August, and a ruling is expected shortly on a similar case being brought in the UK.
L'Oreal has claimed that the eBay website profits from the sale of fake products and that brand owners are expected to help police online auctions. The cosmetics company told the hearing in Paris it believed that as many as 60% of the perfumes sold on eBay under its luxury brand names were fakes.
But the court ruled that eBay was meeting its obligations to combat the sale of fake products, and urged the companies to use mediation to develop a plan which would enable them to work together on the issue."
This is fascinating as yet another example of how completely the hosting immunity provisions of Art 14 of the EC E-Commerce Directive are failing to be interepreted in a harmonised manner across Europe. As the Guardian report notes, only a few months ago we saw a completely opposite ruling emerging from the French courts, which are regarded as the toughest courts in Europe on intermediaries "assisting" in IP violation (see eg previous DailyMotion and MySpace cases).
The problem is also not only about IP; in Italy, Google is being sued for allowing the posting of defamatory videos on its site, while in France also, several cases have held user-generated content sites liable for posting of private photos. Only in the UK, of the large commercial EU countries, are we yet to see a case holding a major web 2.0 intermediary liable in respect of user generated content.
The immunity provisions of the ECD in Arts 12-15 desperately need reviewed and reformed, yet the Comnmission shows no signs of wishing to initiate such a process. Pangloss, suprise, suprise, is currently rewriting her chapter on this whole area for Law and the Internet 3rd edn. My provisional conclusions are that a bright line of no liability on intermediaries for content provided by third party content providers, unless or until notice is given to take down (as in Art 14) can no longer be sustained.
We are seeing instead a move towards a new system, by court if not legislative creation, which
- uncouples the current horizontal scheme of immunities to reflect the very different pressures in the fields of , notably, copyright and pornographic material, as opposed to defamatory or private material
- recognises the increased demands both of IP rightsholders and law enforcement agencies for pre emptive filtering rather than ex ante takedown, possibly by taking advantage of the ECD's exemption of injunctive relief from the immunity provisions
- responds to the increased blurring between the notions of "intermediary" and "content provider", especially in the world of web 2.0 intermediaries such as eBay and YouTube etc, by removing immunity from such hybrid intermediaries, or imposing extra obligations
- in particular, relies heavily on looking at what financial gain an intermediary makes from hosting or linking activities, thus moving to a far more case by case assessment of immunity, which will be difficult to predct for intermediaries and hard to implement in automated take down or filtering systems
- finally, regulatory intervention may be needed to bolster public interest values like freedom of speech and privacy against defensive or industry-required take down, monitoring and/ or filtering by intermediaries.
Friday, July 04, 2008
The sweet smell of success
OUT-Law reports (inter alia) that perfume seller LVMH has won its action against eBay for allowing resales of its luxury prfume brands:
"Online auction site eBay has been fined £31.5 million and ordered to forbid the sale of some luxury perfumes in a French court order designed to battle the sale of counterfeit luxury goods.
Handbag, clothing and perfume company Louis Vuitton Moët Hennessy (LVMH) sued eBay in the French courts, claiming that the company did not do enough to combat the sale of counterfeits of its goods.
EBay claims that it cannot police all the sales through its site and that it makes no guarantee that goods are genuine, and that it suspends counterfeit auctions when notified of them.
The French court, though, found "serious faults" in eBay's processes [the VeRo procedure] that led to auctions of counterfeit goods going ahead. By allowing the sales, it said, eBay had damaged the reputation of luxury brands such as Louis Vuitton and Christian Dior.
EBay said that it would appeal the verdict."
As Pangloss has noted many times before, this is yet another strike against the once prevalent assumption that eBay would be a host under Art 14 of the EC E-Commerce Directive and thus not liable for content related infringements of the law where others were the authors. At the moment eBay are required to remove listings only upon actual notice; what Louis Vuitton, and Tiffany and all the rest want is for eBay to do the work of filtering out those listings in advance, by filters or however.
Combined with the "3 (1?) strikes and you're out - well, we told you so" campaign (see next) and the anti-child porn brigade, it has to be said that the ECD immunities of Art 13-15 - including the requirement that the state not ask ISPs or hosts to proactively monitor or filter in Art 15 - look increasingly like dead ducks.
Things look to be going the same way in the US as well, with both the CDA s 230c immunity under fire in the US Tiffany litigation, and DMCA immunity attacked in the ongoing Viacom v You Tube battle, which seems to have re awakened into violent life. Wow. Interesting times. This combination of factors is what Chris Marsden of Essex has insightfully been calling the "perfect storm" which is sooner rather than later going to overwhelm the 2000 consensus on immunity for online intermediaries, as well as net neutrality (plug - see chapter in upcoming 3rd edn Law and the Internet!).
Perhaps the debate should start to be not about what Art 14 means, but about what is to replace it when as expected proposals for reform of the ECD start to appear in the autumn. The content industries wil have all their arguments marshalled already: those of us who worry about freedom of expression, surveillance by DRM, loss of private data and promotion of innovation should start thinking about ours too. Judging by the Telecoms Framework Dirctive amedndments (see next), significant EU reform may arrive when we least expect it with little time for debate.
"Online auction site eBay has been fined £31.5 million and ordered to forbid the sale of some luxury perfumes in a French court order designed to battle the sale of counterfeit luxury goods.
Handbag, clothing and perfume company Louis Vuitton Moët Hennessy (LVMH) sued eBay in the French courts, claiming that the company did not do enough to combat the sale of counterfeits of its goods.
EBay claims that it cannot police all the sales through its site and that it makes no guarantee that goods are genuine, and that it suspends counterfeit auctions when notified of them.
The French court, though, found "serious faults" in eBay's processes [the VeRo procedure] that led to auctions of counterfeit goods going ahead. By allowing the sales, it said, eBay had damaged the reputation of luxury brands such as Louis Vuitton and Christian Dior.
EBay said that it would appeal the verdict."
As Pangloss has noted many times before, this is yet another strike against the once prevalent assumption that eBay would be a host under Art 14 of the EC E-Commerce Directive and thus not liable for content related infringements of the law where others were the authors. At the moment eBay are required to remove listings only upon actual notice; what Louis Vuitton, and Tiffany and all the rest want is for eBay to do the work of filtering out those listings in advance, by filters or however.
Combined with the "3 (1?) strikes and you're out - well, we told you so" campaign (see next) and the anti-child porn brigade, it has to be said that the ECD immunities of Art 13-15 - including the requirement that the state not ask ISPs or hosts to proactively monitor or filter in Art 15 - look increasingly like dead ducks.
Things look to be going the same way in the US as well, with both the CDA s 230c immunity under fire in the US Tiffany litigation, and DMCA immunity attacked in the ongoing Viacom v You Tube battle, which seems to have re awakened into violent life. Wow. Interesting times. This combination of factors is what Chris Marsden of Essex has insightfully been calling the "perfect storm" which is sooner rather than later going to overwhelm the 2000 consensus on immunity for online intermediaries, as well as net neutrality (plug - see chapter in upcoming 3rd edn Law and the Internet!).
Perhaps the debate should start to be not about what Art 14 means, but about what is to replace it when as expected proposals for reform of the ECD start to appear in the autumn. The content industries wil have all their arguments marshalled already: those of us who worry about freedom of expression, surveillance by DRM, loss of private data and promotion of innovation should start thinking about ours too. Judging by the Telecoms Framework Dirctive amedndments (see next), significant EU reform may arrive when we least expect it with little time for debate.
Wednesday, February 06, 2008
EBay to ban negative feedback by sellers..
.. but not from buyers.
This is an interesting one. A small UK study Ashley Theunissen and I did in 2005/6 seemed to reveal that both sellers and buyers found leaving feedback by far the most useful and widely-used instrument they had at their disposal for resolving and avoiding disputes on eBay. Other options such as eBay's own on line mediation and negotiation procedures or Payer Protection Schemes were by contrast barely used, and both credit card and PayPal guarantee systems were often inappropriate to the dispute in question, either because a credit card was not used or in the case of PayPal, because the many qualifications for the scheme were not met or the account had been emptied.
However much game theory work since has also shown that feedback is highly unreliable as an index of trustworthiness of sellers, at least partly because negative feedback was very rarely given by buyers who were than one time eBay users for fear of retaliation. Feedback can also be gamed by sellers by a multitude of small value transations to build a shiney feedback profile, after which a large value no-delivery fraud is undertaken. Hence the preponderance of both sellers and buyers with 99.99% satisfaction ratings on eBay. eBay has been trying to address the second problem with its "Feedback 2.0" , which allowed a more granular breakdown of how an eBay seller had acquired a certain feedback score over multiple transactions, but clearly this has not been felt to be enough to provide trustworthy guidance to buyers.
Given also the growth of eBay as a site for Power Sellers, quasi professional sellers and the like, trying to turn feedback back into a true index of the trustworthiness of a seller by restricting retaliation tactics seems like a smart move. Sellers however are of course not best pleased, according to the Beeb report. In our small survey, 60% of sellers had left negative feedback, as opposed to 40% of buyers, so this looks like a big change in practice for UK sellers. It will be ve-ry interesting to see how this pans out. is eBay trying to forestall buyers leaving for other auction sites where they feel they are more likely to get good service from buyers, or at least have a better chance of picking a trustworthy merchant?? Or is it truely as reports say trying to provide a better "customer environment"? Pangloss would love to know if anyone has more info.
In the meantime, what we continue to need is a "true" non-gameable index of cross-site reputation - something from the distributed identity stable, perhaps. So far we are at the very early attempts stage in this field - see eg QDOS from the garlik folk, where Pangloss mysteriously finds herself compared to authors, footballers and Eastenders bit actors from time to time. Still, at least it's a start..
This is an interesting one. A small UK study Ashley Theunissen and I did in 2005/6 seemed to reveal that both sellers and buyers found leaving feedback by far the most useful and widely-used instrument they had at their disposal for resolving and avoiding disputes on eBay. Other options such as eBay's own on line mediation and negotiation procedures or Payer Protection Schemes were by contrast barely used, and both credit card and PayPal guarantee systems were often inappropriate to the dispute in question, either because a credit card was not used or in the case of PayPal, because the many qualifications for the scheme were not met or the account had been emptied.
However much game theory work since has also shown that feedback is highly unreliable as an index of trustworthiness of sellers, at least partly because negative feedback was very rarely given by buyers who were than one time eBay users for fear of retaliation. Feedback can also be gamed by sellers by a multitude of small value transations to build a shiney feedback profile, after which a large value no-delivery fraud is undertaken. Hence the preponderance of both sellers and buyers with 99.99% satisfaction ratings on eBay. eBay has been trying to address the second problem with its "Feedback 2.0" , which allowed a more granular breakdown of how an eBay seller had acquired a certain feedback score over multiple transactions, but clearly this has not been felt to be enough to provide trustworthy guidance to buyers.
Given also the growth of eBay as a site for Power Sellers, quasi professional sellers and the like, trying to turn feedback back into a true index of the trustworthiness of a seller by restricting retaliation tactics seems like a smart move. Sellers however are of course not best pleased, according to the Beeb report. In our small survey, 60% of sellers had left negative feedback, as opposed to 40% of buyers, so this looks like a big change in practice for UK sellers. It will be ve-ry interesting to see how this pans out. is eBay trying to forestall buyers leaving for other auction sites where they feel they are more likely to get good service from buyers, or at least have a better chance of picking a trustworthy merchant?? Or is it truely as reports say trying to provide a better "customer environment"? Pangloss would love to know if anyone has more info.
In the meantime, what we continue to need is a "true" non-gameable index of cross-site reputation - something from the distributed identity stable, perhaps. So far we are at the very early attempts stage in this field - see eg QDOS from the garlik folk, where Pangloss mysteriously finds herself compared to authors, footballers and Eastenders bit actors from time to time. Still, at least it's a start..
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 Ebay.co.uk 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 ebay.co.uk nonethless. In fact on a cursory glance as of today , 21/1/08, a search on "flick knives" on eBay.co.uk gave a zero result, not surprising as "flick knives" sub nom "switchblade knives" are one of the items banned on ebay.co.uk.
However the page conveniently points you at the bottom to results that CAN be found -on ebay.com in the USA. In fact although only two items were so indicated when Pangloss went to look, a quick direct search on ebay.com 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 ebay.com 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 snopes.com 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 .co.uk) "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 ebay.co.uk, "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.
"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 Ebay.co.uk 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 ebay.co.uk nonethless. In fact on a cursory glance as of today , 21/1/08, a search on "flick knives" on eBay.co.uk gave a zero result, not surprising as "flick knives" sub nom "switchblade knives" are one of the items banned on ebay.co.uk.
However the page conveniently points you at the bottom to results that CAN be found -on ebay.com in the USA. In fact although only two items were so indicated when Pangloss went to look, a quick direct search on ebay.com 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 ebay.com 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 snopes.com 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 .co.uk) "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 ebay.co.uk, "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.
Sunday, November 25, 2007
Tiffany v eBay
A tip off from WOIP blog that the long awaited suit by Tiffany's against eBay for trademark infringement - basically, stocking counterfeit Tiffany goods - is about to kick off.
http://woip.blogspot.com/2007/11/tiffany-versus-ebay.html
Given recent cases in France and Germany which have tentatively pointed towards a trend towards European judges not finding the EC E Commerce Directive Art 14 a complete defense for user generated content sites, this one could be very interesting :)
http://woip.blogspot.com/2007/11/tiffany-versus-ebay.html
Given recent cases in France and Germany which have tentatively pointed towards a trend towards European judges not finding the EC E Commerce Directive Art 14 a complete defense for user generated content sites, this one could be very interesting :)
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