Recent court decisions in France and Australia concerning the online auction site eBay have sent clear messages to users according to cyber law expert Dr Alan Davidson.
Dr Davidson, from UQ’s TC Beirne School of Law, said a decision in France to order eBay to pay $63 million dollars after permitting the sale of counterfeit products and a decision by the New South Wales Supreme Court to uphold eBay as a binding contract of sale showed that the law was catching up to the site.
“I think that lawyers are getting around to figuring out the legal arguments,” he said.
“And we are seeing more cases like this involving eBay and Google and the like.”
In August 2007, the NSW Supreme Court dealt with a dispute that arose when a registered eBay seller of a vintage aircraft refused to sell to the final bidder.
Ultimately, Dr Davidson said the case was quite clear cut; a contract is a contract, but it also importantly showed that an eBay sale was a legally binding contract.
He said the whole legality of the sale was bound up in the terms and conditions that all registered eBay users must agree to.
“When you click on the I agree button, you are legally bound by it, like a signature,” he said.
“It’s referred to as a clickwrap agreement. It comes from the term, shrinkwrap, where if you open the shrinkwrap material of a product, you are bound by the terms and conditions on the inside."
“When you click, ‘I agree’, it is clear and unambiguous that you agree to the conditions, and even if you don’t read them, you are bound by them.”
Dr Davidson said the French case was interesting as it followed a similar legal path to music download applications such as Napster and Kazaar.
“eBay argued that they merely provide the site and don’t know what people sell or do, but the court decided that they did know, or should know, and they were held liable.”
Dr Davidson said the French decision may have implications for users buying in the future.
“There is a slight danger to individuals given what happened with Napster, Kazaar and Limewire. They didn’t just go after the big illegal downloaders, they targeted the small people and advertised it broadly to scare everyone off.”
When it comes to advice for eBay users, Dr Davidson said, legally, things were very clear.
“Number one: read the terms and conditions, and that is something a lawyer would say with every contract."
“And number two: if you buy items that are clearly imitations, it is against the law and you must be aware that you are doing it in a public place where there are records kept.”