eBay’s recent defence against the possibility of action on behalf of the General Optical Council (GOC) may set an interesting legal precedent. The GOC objected to private individuals selling contact lenses on eBay – normally such private sales are outlawed. In turn, the online auction site argued, amongst other things, that it couldn’t be held responsible for the visitor submitted content it hosts. eBay’s defence was based on four principal grounds:

- the GOC had failed to demonstrate that the directing minds behind eBay were aware of the specific offences being committed, which is necessary to prove aiding and abetting,

- the EU eCommerce Directive makes it clear that, as an Internet company hosting content, eBay cannot be liable for that content without being given reasonable notice to take it down or remove access to it;

- the GOC had failed to contact eBay prior to bringing the criminal prosecution (contrary to its stated policy at the time) and that therefore the prosecution was an abuse of process as a result, and

- the EU eCommerce Directive explicitly excludes the imposition on any information society service provider of any obligation to monitor

Representing eBay on the case, Paul Stevens, partner at Olswang, commented, "The law applicable to eBay is very clear. We have acted for eBay in a number of cases in the UK, where someone has tried to hold eBay responsible for the activity of its users. In each and every case we have had an unqualified success on behalf of eBay demonstrating that without knowledge of the particular unlawful activity concerned, eBay cannot be held liable. In fact, eBay's policies and systems go far beyond the obligations imposed by the law, which made a defence of the prosecution brought an easy one."

These lenses bring into focus an interesting lesson for the countless firms in the UK selling, or planning to sell, online. It is also an example for those sites, like MySpace for instance, hosting unregulated content. The keynote of this lesson is trust. ebay has clearly proven its business model to be trustworthy. Indeed, it has emerged from this issue with its reputation glowing. Not only can it be argued that the company is blameless but, as most reporting of the incident mentioned, it has a team of people in place to prevent such situations.

And this trust is essential. When we book or pay for anything online the customer must trust a site they may not know enough about to have faith in. Thus, it is the buying process itself, which must provide that trust. This has been a partial success for organisations like Paypal. However, for it to be a complete success, the industry must provide a mark of online confidence that can be employed by any accredited organisation, like the Corgi standard or an electrician’s Trustmark. Perhaps such a mark could be earned not only by online retailers but also individuals using the sites like e-Bay as a vehicle?

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