EBAY & THE UNFAIR CONSUMER CONTRACT LAWS

[Rebel*1*]

THE BIG QUESTION - WHO'S COVERED AND WHO ISN'T
A consumers perspective:
How many consumers and business traders have been treated unfairly by Ebay over the years?  How many have had the usual cut and paste response to disputes, or any kind of issue for that matter,  when it comes to any reasonable request for recourse?  Just try to get your account reinstated when Ebay wrongly suspend it, it’s a battle of the fittest. You first have to find a way to contact them, but they are the worlds biggest ABSENTEE LANDLORD, and seem to pride themselves on ignoring their consumers to the point of abstract hatred and frustration, as if it’s their industry ‘benchmark’.

A quick search on Google for Ebay Hate sites and other terms used to describe Ebay, brings up literally millions of disparaging and angry comments from consumers and traders alike, with numerous sites devoted to the exclusive hatred of Ebay as a corporation worldwide:   

HATE EBAY –WEB: 2,160,000  Australia Only: 30,400
FLOCK EBAY - WEB: 3,270,000  hits  -  Australia Only 21,900

The common theme with a majority of the comments I read was the same.  Traders and buyers screaming for recourse against Ebay’s unfair practices and total ignorance of customer service, dispute resolution or proactive risk management.   But if you’ve ever had a dispute with Ebay (or been ripped off) you’d know that they refer you to their unfair consumer contract and advise you to talk to the Wall.

I have been perusing the Unfair Contract Terms Guidelines, and it makes some fairly straight forward distinctions that are of great interest in terms of Ebay’s User Agreement.  The Big question is, will it apply to Ebay consumers, and if so Will businesses be given a fair (but separate) commercial agreement finally, that differentiates them from consumers? 

Under Ebay’s present User Agreement, there has never been a Clear differentiation made between Consumer and Trader.  Nonetheless, neither party has any rights or recourse under Ebay’s present Unfair UA.      This new legislation goes half way to making that distinction in the real world, but what Ebay does with it might be a different kettle of fish. (Kicking and Screaming as they prefer no doubt). 

One thing seems clear however, businesses Won’t be covered by the provisions of this new legislation. So Ebay’s UA will be redundant to them from July onwards, if the Ebay UA is included under these new Unfair consumer contract laws.

The UCT provisions will apply only to standard form consumer contracts—for example, contracts for the supply of goods or services to an individual whose acquisition is wholly or predominantly for personal, domestic or household use or consumption.

No doubt Ebay will first argue that their User Agreement isn’t a standard contract, because let’s face it, they'll try anything to get out of being accountable under Australian law.   So let’s examine what that means to the layperson.
 
What is a standard form contract?
The unfair contract terms provisions do not define the meaning of ‘standard form contract’, either directly or by reference to the elements of such a contract. However, in broad terms a standard form consumer contract will typically be one that has been prepared by one party to the contract and is not subject to negotiation between the parties – that is, it is offered on a ‘take it or leave it’ basis.

When is a term "unfair

A term of a consumer contract is unfair if:
• it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
• it is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
• it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

No Doubt Ebay will try to perform its standard ‘Venue Only’ song and dance number, (as per it’s unfair UA), in trying to duck any responsibility to consumers and traders under this new legislation, as they do and have done for years.  At least they are consistent in that regard.

However, ACCC advised that the new legislation is relying on Victoria precedent to set the bar, (being the only state to have implemented UCT since 2003).   I was advised to check for any cases with V-CAT to see if an unfair contract case or similar had ever been before the Vic Consumer Affairs Tribunal.   

Apparently, if a precedent had already been set and Ebay had been able to rely upon its 'Take no Responsibility - One Size Fits All' User Agreement, then we as consumers, would have had problems, arguing our consumer rights under its unfair terms.   

However, there is one case, which clearly defines Ebay as a ‘Service Provider’ under Victorian law, and refutes Ebay’s ‘Venue Only’ argument and User Agreement as follows:

CASE EXAMPLE - ONLINE AUCTIONS
Relatively few complaints concerning internet auctions have come before the courts. However, in 2001 VCAT previously determined that hosting online auctions is providing a service. This means that a complaint in relation to the provision of this service can be regarded as a fair trading dispute under section 107 of the Fair Trading Act 1999 (Vic) ("FTA") (see Evagora v eBay Australia and New Zealand Pty Ltd [2001] VCAT 49). This decision appears to be precedent for bringing an action at VCAT alleging breaches of the FTA. For further information, see: Chapter 12 Consumers and Contracts. http://www.lawhandbook.org.au/handbook/c...h97Se53384

Evagora V Ebay

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2001/49.html?stem=0&synonyms=0&query=evagora

Findings and Conclusions
(b) s107 of the Fair Trading Act 1999 defines a "fair trading dispute" as a "dispute or claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services". "purchaser" is defined in s3 of the Act as "the person to whom the goods or services have been or are to be supplied".. It is not necessary for there to be any financial consideration. It is clear that the Respondent in hosting online auctions is providing a service - the provision of a venue for the auction - to both sellers and buyers. I am therefore satisfied that there is a fair trading dispute between the parties which falls within the provisions of s107 of the Act..

(c) I am not satisfied that the releases set out in the User Agreement defeat any claim the Applicant has under the Fair Trading Act 1999.

The Respondent has an obligation to its consumers to ensure that any limitations associated with the use of its online auction facility are clearly notified to prospective users. It is not sufficient to have a 12 page User Agreement with numerous clickable links that in many respects contradicts the clear representations contained on the homepage and the "bidding" page. Where limits apply they must be clearly spelt out

Speaking as a consumer, I'd have to assume that Ebay's UA will be included under this new legislation, but then Ebay's endless exemptions to various Australian laws, appears to know no bounds or budget. So once again, they may escape scrutiny simply because they have high paid lawyers who could find a loophole, in a fishes watertight botty.

So, the big question is, how Ebay will wriggle and squirm their way out of this one with our Regulators?.  I’m sure they’ll give it their best shot. 

As for the Business sellers, well, it's high time that they campaigned to ACCC for a fair Commercial Service Agreement with Ebay.   

The problem traders have, is that the Ebay contract isn't a commercial one and it reserves the right to pull the rug out from under them in a heart beat, reversing all liability and waiving any obligation as a 'Venue'.

EBAY'S LATEST MARKETING PUSH: Small Business

I heard on the grapevine that ebay are planning a marketing push to businesses.  But if Small Business people realise that they have no control over their businesses on Ebay and no recourse if ebay acts unfairly, they might have to think twice.  I know I would.

"Hey come sell on Ebay, we'll treat you like dirt, give you no rights over your own business or how you conduct it, and if you lose money, well hey, Ebay is fun right? Go talk to the wall, we're just a 'Venue" 

Moral: 'It is a Foolish Man who Builds his House upon the Sand'.

For Small Business, Ebay offer only shifting sand. No, make that Quick Sand

ACCC UNFAIR CONSUMER CONTRACT TERMS
http://www.accc.gov.au/content/item.phtml?itemId=920435&nodeId=764c8b9ceb822be00d2286840f322866&FELAFELEN=UCT%20guide%E2%80%94Consultation%20draft.pdf

(This has been a consumer to consumer service announcement)

[*Brum6y*]

It has been very clear for quite some time that eBay (and Paypal for that matter) have set themselves up in grey areas of the law and operate well outside the bounds of the Aussie idea of 'a fair go'.

Certainly many practices are unconscionable, immoral, ruthless and self-serving - with the degree and scope of abdication of responsibility simply breathtaking.

If eBay are deemed to be providing a service and the UA is the contract under which that service is supplied and used, then:
1. It most definitely is a 'standard form' - as it is the one eBay supplies to every member.  No valid grounds exist, to my thinking, in claiming that there is no 'standard form' defined within the industry eBay services.  If anything, eBay could be cited as presenting a UA that might well be considered a 'standard form' based on the standing they have within that industry.

2. The unfairness in the terms can be so easily demonstrated with multiple, actual cases - so long as the required attention is paid to capturing the detail demanded by the legal process.  The cases of fraud alone are legendary.  Certainly one aspect has piqued my interest - the attraction of sellers to invest time, develop a business and commit to the site, only to have conditions altered, reducing their income and increasing their workload with limited ability to move their business elsewhere. The word 'entrapment' has crossed my mind more than once on this.

3. EBay have only survived so far because plaintiffs have been individuals who have not had the resources to pursue legal matters through the fuzzy greyness, but those aspects are changing...

EBay has been skating on thin ice for a while and now that the heat has been turned up, that ice will be thinning even more.


I sense their swimming skills will be sorely tested .... and in the not too distant future.

[*Yibida*]

Ebay has a long record of Put it in the " Too hard basket "  they are to money hungry to assign a dedicated team to put a stop to the rort ...

the sooner they have to comply with Australian consumer laws the safer everyone will be....

Ebays days of rebel business practices are numbered ...

I believe they are under the microscope and this current scam of defunct sellers will bring it to the forefront now...

..... oh .. and Paypal ... another dog that needs whipping >>>>>>>>>>>>> they will get theirs in due course....

[*Ubbie Max*]

Although I'm a buyer only I feel for the many honest sellers who have been unjustly treated by Ebay (&Paypal). I also feel for those buyers who have been ripped of by unsrupulous sellers. It will be interesting to see if EBay/Paypal do the right thing by the wronged buyers in the latest scandel (travel rort).

 It's time our legislaters enacted further laws to protect those who have been (retrospective) & will be wronged in the future. It will happen again (& again) unless something is done to ensure it either can't happen or if it does, the offenders are brought to justice.

Rebel*1*. Keep up the great work & please keep us informed.

Brum6y. Your comments are spot on. I believe there will be some "interesting times" ahead for both Ebay & Paypal.

[tellomon]

Totally late, innocuous *snipe*

[*CountessA*]

What are your rights under the Fair Trading Act 1999?

Read up on your responsibilities and your rights. The link is here (for the pdf version of the FTA 1999, incorporating the amendments of 11th June 2009). You can print out the whole thing and have it to hand as a timely and important reference.

I know - some of you will shriek in horror and say, "COUNTESS! You expect us to READ ALL OF THAT? No, no, no. Scroller! Run! Aaagh!"

But this is your Bible, your prayer and your protection when it comes to unfair practices. Read it and perhaps you may want to create your own point form version for easy reference.

I may be persuaded over the next month to create a point form version for everyone... but I honestly believe you are best off reading the WHOLE THING first, and using a highlighter pen to note the bits that are particularly important to you.

[*Brum6y*]

I may be persuaded over the next month to create a point form version for everyone... but I honestly believe you are best off reading the WHOLE THING first, and using a highlighter pen to note the bits that are particularly important to you.

I will agree with that wholeheartedly.

A summary is useful - but only safe when you have an understanding of the official documentation. Somebody else's summary may not capture the exact concept you might need to understand - and if you misinterpret something, you could end up in trouble.

Read the full, official document and be sure it makes sense to you FIRST. Then use a summary as a reminder.


Some may suggest reading a summary as a guide to particular topics that would invite your deeper examination, but that will not give you the full picture. If you're just curious, then this would be OK - but if you intend to act on anything ... READ THE WHOLE OFFICIAL DOCUMENT!

[*CountessA*]

The basis of dealing with any business or corporation, and the basis of seeing how the Unfair Consumer Contract Laws affect your dealings with eBay, is knowledge... and knowledge starts with the nitty-gritty, the whole thing.

Let me relate something.

A friend told me last week about an email she'd received from a relative, warning her of a particular scam. The relative's email told her to contact family and friends to warn them about this scam. The email said the scam was real, and that it had been confirmed on Snope.

Do you know how many people have been receiving this sort of email? Millions. Quite literally, millions. The scam wasn't real at all.

(Of course, that isn't to say the warning of what not to do wasn't valid, but the particular scam that was warned against in this email was a spoof, a fake, dating back to 2002.)

It's interesting that so many people won't check the Snope website! They will believe the link, because they reason "It must be true. No one would include a link if the link contradicted the information. So it must be true." And they - didn't - check.

I did.

I showed my friend EXACTLY what Snope had to say about this very email. Her relative had been yet another caught in the mesh of fraudulent email spoofs.

Now... I mention this because it points out something that's rather disturbing. MOST people don't check reference links. Most people will not check whether the information they're quoting is true. Most people won't go to the source, but will just google the whole internet - and the internet is full of conflicting, contradictory and unconfirmed "information". Most people, it seems, rely on Wikipedia (a site which ANYONE can edit, for goodness' sake!) for information, rather than upon the Online Encyclopædia Brittanica site, in which entries are ONLY offered and edited by attested experts. Most people - this is stunning to realise - are NOT DOUBLE-CHECKING THE THINGS THEY'RE QUOTING... or the things they say or believe.

When it comes to eBay and PayPal and online buying and selling and so on and so worth, there is a lot of misinformation around. I think we can agree on that. But how often do we realise we ourselves may have been guilty of helping to spread misinformation, just by quoting something we haven't checked? I am as guilty as anyone - remember when I talked about the little doodly thingummy on my car odometer? I assumed that someone's post on a car forum was correct and applicable... and it wasn't. I gave myself a good slap for that, believe me.

I believe the following is a good way to approach information & life.

  1. Admit we are all human. We can make mistakes. Yes, we. We CAN. I can. I have. You can. You have. Your father can. Your mother can. Your genius son can. Your remarkable brain-surgeon daughter can. Your incredible contact in the top secret Bureau of All Knowledge, Sir Wonderful Nnevarongue Monseigneur le Perfection, can. Every single one of us can. We are NOT going to get it right all the time. We have to realise this - and not only realise it, but understand it. This is the human being's first step to wisdom.
  2. Forgive yourself for being human. All right... we can make mistakes. We can err in assessing data. We might have misinterpreted information in a clause, or misquoted something while thinking we were being faithful to the letter and spirit of something written. But we can get past that knowledge of our own fallibility, because as long as we realise we CAN make mistakes, we have an inbuilt ability to do something that is remarkable... We can learn.
  3. Go looking for information. Remember your critical thinking lessons in English? Assess the source of the information! Always see whether you can obtain the best quality information - and that means going to the source. Yes, sorry - this means we have to read through pages and pages and pages of turgidly-written stuff. (I really am sorry. Do you think I enjoy reading it? NO! None of us is going to list "Reading Acts and Legislations and Amendments" under "Your favourite hobbies". But when the going gets tough, the TOUGH GET READING!
  4. Perhaps read through it again - with highlighter. Mark anything you don't understand. Highlight anything that's really important. If in doubt, ask for clarification from a representative. Make them work for their large incomes. (Mwa ha ha.)
  5. Now you're armed and dangerous. Anyone who doesn't have the background knowledge of SOURCE MATERIAL that you have is at a disadvantage. You can TELL when they don't know what they're talking about, because their arguments are like weapons loaded with squawking chickens rather than with bullets. It just won't make sense.
  6. You have the basic knowledge now, too, with which to assess what's going on with the recent changes viz à viz eBay and the power of the ACCC.

If you rely on someone else telling you what the data is, you run the risk of their interpretation colouring the actual facts... missing pertinent information... and getting a fairy story.

If you engage in discussion with someone who DOES have the background knowledge, you can discuss it from different viewpoints, but WITH THE SAME BACKGROUND KNOWLEDGE. Knowledge and perspective are different things, although some physicists may well disagree with me. (They're wrong. Pfffffft!)

[*smee*]

Very wise words Countess

[*FluffyDuckee*]

Very very very very very very very very very very very very very wise and true words...   

[*CountessA*]

We need to put into practice the sort of things the OP (welcome, Rebel, by the way!) has pointed out. (I'm sorry - should have welcomed you earlier, but I was enthused by your post and just jumped straight in - and I've been somewhat unwell lately.)

How many consumers and business traders have been treated unfairly by Ebay over the years?  How many have had the usual cut and paste response to disputes, or any kind of issue for that matter,  when it comes to any reasonable request for recourse?  Just try to get your account reinstated when Ebay wrongly suspend it, it’s a battle of the fittest.

You're not wrong. I've come across several authenticated examples of this. "Reasonable [...] recourse" is what I consider a necessary benchmark of customer service... but eBay unfortunately do not excel in reasonable recourse. Sometimes there have been victories for the consumer, but at considerable expense of money and an enormous expenditure of time and frustration.

Traders and buyers screaming for recourse against Ebay’s unfair practices and total ignorance of customer service, dispute resolution or proactive risk management.   But if you’ve ever had a dispute with Ebay (or been ripped off) you’d know that they refer you to their unfair consumer contract and advise you to talk to the Wall.

Exactly. I would definitely like to see consumers much more aware of consumer legislation in Australia so that they can talk to eBay from a perspective of knowledge and strength. Information is strength, to a degree... and with the ACCC getting more bite to its teeth, information's got more strength than ever.

I have been perusing the Unfair Contract Terms Guidelines, and it makes some fairly straight forward distinctions that are of great interest in terms of Ebay’s User Agreement.  The Big question is, will it apply to Ebay consumers, and if so Will businesses be given a fair (but separate) commercial agreement finally, that differentiates them from consumers? 

Mm-hmm. We as eBay consumers can do no better than to make ourselves familiar with these Unfair Contract issues. We can't allow ourselves to be blindfolded by ignorance! When we take on any business or corporation, it's got to be from that position of strength, because if we don't know about the power of our own country's legislation, how can we use it to see our rights protected?

[Rebel*1*]

This legislation was foreshadowed and reported on by the Rebels after Ebay Breached the Consumer Contract of many thousands of Pre-September '07 members via Stage 1 of the notified conduct on 21/5/08. 

Prior to this all pre-September '07 consumers of the ebay product had been exempted in writing from having to offer Paypal, under the previous user agreement.

At the time, Stage 1 of the Notification, fell outside of ACCC's jurisdiction, but it was confirmed at the time that it was more resembling of a breach of Consumer Contract.  Unfortunately there were no laws protecting consumers from unfair consumer contracts at that stage. 

In August 2008, there was a national conference in Perth involving all levels of consumer protection including law enforcement.  It was highlighted at that time that unfair consumer contract laws would save tax payers billions, and would therefore be implemented Nation Wide.  It took almost two years.

In the Productivity Commission's review of Australia's Consumer Policy Framework, it found that the implementation of a national consumer law could save Australian consumers between $1.5 billion and $4.5 billion a year.http://www.computerworld.com.au/article/343363/accc_gains_new_teeth/

This legislation is innovative and proactive. e.g. the contract has to be fair from the outset or it is considered void and might possibly even attract a huge fine.

After all, if it were not a widespread, costly and serious Nation Wide consumer protection issue, there wouldn't be National Legislation being implemented to protect consumers from Unfair Contracts.

"The new law provides a more responsive national approach, through which the Australian Competition and Consumer Commission will be able to deal more effectively with matters that affect many consumers, particularly vulnerable consumers," ACCC chairman Graeme Samuel said in a statement.

What this legislation will do is even the playing field and give consumers recourse that Ebay (and many other goods/service providers nationally it seems) waive altogether in their unfair consumer contracts. 

Thanks to the Honorable Chris Bowen.  Well Done !!

[*CountessA*]

Indeed. It is fantastic to see legislation and the ability to enforce that legislation moving in this way. It might take two years (as mentioned), but at least we've got something strong and flexible now.

This legislation is innovative and proactive. e.g. the contract has to be fair from the outset or it is considered void and might possibly even attract a huge fine.

If it will help us all understand the background to this more effectively, I will post my understanding of the TPA (in bits), on the proviso that anyone who sees certain points differently SAYS SO. Remember - we're vulnerable if we don't know the extent and detail of our own protection.

[bnwt]

Thanks to the Honorable Chris Bowen.  Well Done !!


and thanks to the small army of eBay users that mounted the email campaign when eBay attempt to enforce paypal only

all those emails to banks, politicians & authorities started this ball rolling

[Rebel*1*]

I don't disagree bnwt, but this legislation does not concern Ebay or the rebellion, although it does include Ebay as a service provider (Gravy if you like).  It concerns the rights of all consumers Nationally, under any standard form contract and is a MASSIVE win for consumer rights.  So, Well Done Chris Bowen. Nothing to do with the ebay protest I'm afraid but it would have been handy if it had been implemented way back then so consumers could argue against ebay's unfair consumer contract.

Countessa: re your post
In numerous past conversations with ACCC since the rebellion first began, it has been constantly highlighted that only a court can interpret the TPA against each individual case.  i.e. that what it appears to mean in theory, is not necessarily what it actually means in practice.

I am merely a consumer, and offer only a consumer perspective on what I've been advised and what I've read.    But where it concerns the TPA, it's not black and white as it appears, and even lawyers tread carefully around it. 

Ebay retain the lawyers who wrote the book on TPA, and you'd have to concede that a laypersons view against their sophisticated justifications are going to be fairly naive by comparison.  Only a legal specialist in TPA would be able to articulate an argument against Ebay Au's legal team.

Even so, people can't be shot for having ideals, opinions or expectations.

And on that basis, (speaking as a consumer and layperson only) it seems to me that Unconscionable Conduct is the only aspect of TPA which might address the inequity between Ebay as a massive dominant corporation and thousands of small businesses without any negotiation power or recourse.
 
http://www.accc.gov.au/content/index.phtml/itemId/303748

Unconscionable conduct between businesses

Being taken advantage of in a way that offends the conscience is known as unconscionable conduct. The Trade Practices Act recognises that there may be circumstances where the manner in which a contract was executed was unconscionable, such as a disparity in bargaining power.

Supplying goods or services—s. 51AC

Small businesses need to know what to do if they have been the target of unconscionable conduct, and how to prevent it from happening.

Section 51AC prohibits unconscionable conduct in small business transactions—that is, conduct which is 'in all the circumstances, unconscionable'. The value of the goods or services involved in the transaction must not exceed $10 million, and the business subjected to the conduct must not be publicly listed (a publicly listed company has its shares listed on the stock market).

Where either of these conditions is not met, s. 51AC will not apply. However, the business may have other remedies available under s51AA (general unconscionable conduct), or other areas of common or equity law.

Factors the court will consider
Section 51AC sets out several factors the court can consider in deciding whether conduct was unconscionable. They include, but are not limited to:

* the relative bargaining strength of the parties
* whether the stronger party imposed conditions that were not necessary to protect their legitimate business interest
* the use of undue influence, pressure or unfair tactics
* whether the weaker party could obtain supply on better terms elsewhere
* whether the stronger party made adequate disclosure to the weaker party
* the willingness of the stronger party to negotiate
* the extent to which each party acted in good faith
* the requirements of any relevant industry code
* the existence and effect of any unilateral variation clauses.

These factors are not exhaustive and in determining whether an unconscionable act has occurred the court will consider the conduct as a whole, including other factors that have not been listed above.

Within the meaning of the unwritten law—s. 51AA

Section 51AC builds on the more traditional concepts of unconscionable conduct under s. 51AA that apply to all commercial situations, not just the buyer–seller relationship. Section 51AA imports into the Trade Practices Act all of the equitable doctrines founded on the notion of unconscionability. In particular, the court has indicated that it may be willing to grant relief under s. 51AA when:

* the stronger party unfairly exploits the weaker party's disadvantage
* the stronger party relies on their legal rights to take advantage of the weaker party in a way that is harsh or oppressive
* the stronger party allows the weaker party to rely on an incorrect assumption, or fails to disclose an important fact
* one party benefits unfairly from the deal at the expense of the other party
* the weaker party relies on a misrepresentation by the stronger party
* the weaker party is unable to understand the deal, due to lack of experience or professional advice.

The above list is not exhaustive, and the application of s. 51AA continues to develop.

While it seems straight forward, apparently it's not. If small businesses nationally lodged complaints with ACCC, when ebay bites, then perhaps it might make all the difference.  The battle for fair competition in the Online Auction/Bin marketplace has yet to be fought but only Ebay small businesses can get 'That' Ball Rolling.

[*CountessA*]

The issue of unconscionable conduct is, I think, the chink in the armour of any business not complying with the TPA as broadly interpreted by an informed, intelligent but non-specialist reading.

Anyone? Have you tackled the TPA yet? I expect book reviews and character analyses, so to speak...

[Rebel*1*]

Well not exactly, it's only a chink in the armour of dominant, more powerful companies, being unconscionable towards smaller players.  (though I may have misunderstood your meaning). 

I agree with you that many might consider various acts unconscionable under the broader meaning of the term i.e. Offending the conscience, but that wouldn't make it unconscionable under the legal meaning apparently.     

To explain my last post further, even though the TPA is seemingly complex in practice, the general concepts of unconscionable conduct are set out to enable small businesses to articulate what they think MIGHT be happening to them.  ACCC rely on public and industry complaints.  They can't just go gunning for every company in Australia on a whim.  All parties have rights including Ebay.

Whether it's a successful complaint or not, depends on many factors I would think, but if ACCC received thousands of similar complaints from Ebay small businesses,  asking for nothing more than equal bargaining power, and something as basic as recourse under Ebay's UA, then one might expect that ACCC may look into it further. 

Either way, they would at least give Ebay the option to reply to their concerns before punitively impacting them.  Unlike the way Ebay treats its sellers (and buyers) in not offering them the same basic courtesy.

The key question for small business is whether they consider Ebay's 'One Size Fits All' UA, offers equal bargaining strength, or whether it imposes unreasonable conditions that benefit only Ebay.  Also whether undue pressure or unfair tactics have been used against small businesses in the implementation of that contract at any stage, amongst other things.   

It seems that the only time Ebay listen to business customers in any dispute is if the request comes from a solicitor.   It shouldn't have to get to that, if the TPA has any relevance, but whilst Ebay offer no other recourse, and sellers don't complain to ACCC, the playing field will continue to look like a ski slope

I'd also like to clarify that this is NOT about Ebay bashing.  It's about equity and recourse for those who make Ebay what it is.  The Buyers and Sellers.  Consumers of the Ebay product one and all.

If Ebay invested some time and money into developing an equitable and safe marketplace, where Ebay were accountable to its business sellers and consumers, and in turn, sellers were accountable to consumer protection laws and fair trading, then it would be a much better marketplace.  Buyers would feel more confident that they are dealing with a verified entity, and that they have recourse under Australian Consumer Protection laws if a seller or Ebay act unfairly. 

Discussing the issues openly and without prejudice is the first step in educating and empowering consumers and businesses to have a say.   God knows, posting anything remotely similar on Ebay can often lead to the suspension of your consumer account.   How one's opinion on a consumer forum, has any relevance to one's reliability or value as a consumer is beyond me, but it's all stated in Ebay's Unfair Consumer Contract apparently. 

The Gospel according to Ebay reserves the right to discriminate against consumer access if they disagree with your consumer opinion, with no appeals process in place and no discussion entered into.   Meanwhile, they wonder why they are losing buyers and sellers by the truckload?.   All now just roadkill on Ebays' strip mall superhighway !!  Fuzzy logic.

This is just my opinion as a consumer, others might see it differently.

[*Yibida*]

Does anyone have an update on whats happening with the Victims ? .... is ebay / paypal doing the right thing and reimbursing this fraud ? ....... { just another fraud in a line of many } ....

[Rebel*1*]

Hi Yibida, Yes, a lot of information has been amassed, and is being submitted to ASIC.  I am unsure as to whether it is appropriate to post the information online, given the nature of it, and the picture it paints, but it is all to be found in public record, so may not pose any liability.  I am Unsure so I won't post it.  A question for your administrator no doubt, but in the interim, I am happy to make available any of this information to victims of the rort itself.  If anyone wishes to send the information to victims contact me on the PM and I'll make a copy available.  With that information, they will need to make a complaint to ACCC, ASIC and indeed, Fair Trading detailing Ebay's endorsement of the seller via their 'Powerseller' 'cornerstone of the community' blurb.  They are not blameless in this.

[Rebel*1*]

Further to the unfair consumer contract terms and Ebay's UA, I got to thinking about the contract of sale between buyer and seller, and what exactly constitutes the terms of that contract.  

What I found out is that Ebay's UA, forms part of the terms and conditions of that somewhat ambiguous contract of sale, and the conditions set out by the seller, complete the terms.  One would suspect therefore that if the Seller breaches any of Ebay's policies in the listing of that item, misleads buyers re: marketable quality, or changes the terms of sale after the auction, that the contract of sale between buyer and seller would be breached.

Indeed in any formal consumer complaint lodged by a buyer this would definitely come into play.  But not on Ebay.  Rather, Ebay provide Sellers with an NPB/strike process against buyers refusing to pay for whatever reason, but they provide no effective dispute resolution or 'appeals' process against that punitive process for buyers = no consumer recourse or similar mechanism of complaint or appeal against a seller imposing a strike.   Merely a venue?.  It's the fact that Ebay don't wish to refund fees to sellers that this unfair process exists, at the expense of the buyer who has no real appeal against unfair sellers on Ebay. It also gives sellers no other choice but to impose a strike just to recover fees.  It's a very unhealthy, in fact hostile, commercial culture in my view.

So, when is a contract between buyer and seller breached and therefore void?  and what rights do consumers have against Ebay's punitive response to non payment via account strikes, and even suspension?, all without one iota of respect to consumer recourse?

I rang the ACCC to bend their ear for a while, and as with everything Ebay related, it's ALWAYS a gray area.  The contract between buyer and seller is not a standard form contract, but it is underpinned by Ebay's UA, which IS a standard form contract.  In fact a legal precedent (Smythe V Thomas) held that:

"in an eBay auction, there exists not only contracts between eBay and each of the purchaser and vendor. Rather, as in a traditional auction, contracts exist between:

* the vendor and eBay;
* the vendor and purchaser; and
* eBay and the purchaser,

and that these contractual arrangements 'can sit together' to create a binding contract of sale.

Here a contract, there a contract, everywhere a contract, but no recourse for any party contracted whether buyer or seller? and meanwhile Ebay claiming that as it has no role in the negotiation of contracts in other legal arena's?  For e.g.

France's regulatory authority, the Council of Sales, has recently issued proceedings against eBay arguing that eBay should be held to the same strict standards as French auction houses. eBay has asserted that it should not be considered an auction house, but rather should be considered a mere intermediary in the sales process, as it has no role in the negotiation of contracts

Meanwhile Australian law has found that the same contracts that exist on ebay between parties, also exists between parties in traditional auctions.   Say what?  

How can any one party to an imposed contract (particularly the party imposing it) be devoid of any accountability or responsibility ?

Only on Ebay right?

[*Brum6y*]

 as it has no role in the negotiation of contracts[/i]

How consistent is this claim with the action of adjudicating claims between parties, which would (I expect) amount to a breach of contract?

From a lay viewpoint, it seems somewhat hypocritical to say "we aren't involved in negotiating a contract" when they step up and not only involve themselves in the resolution of an issue under that contract, but impose a unilateral decision of their own making which does not take in any semblance of balanced argument, evidence or legalities for both parties.



While it has been said 'the law is an ass' it is clear that it operates on some very precise elements of logic. Deriving those from legislation, precedents, real life, societal expectations within any given case calls upon some creative mental gymnastics at times.

Somewhere deep within my soul, I am certain the statutes exist to hang eBay and Paypal both out to dry .... it just needs the right gymnasts - which will require copious funding.

[Rebel*1*]

If you are talking about legal gymnastics, I wouldn't disagree, but that's not going to happen unless a large seller takes civil action against Ebay, and the media bother to report on it.  It is David & Goliath odds, and most people are priced out of that kind of remedy, so I doubt too many would be able to access it.

It leaves Ebay free and clear to do what they please it seems, as all remedies are out of the reach of ebay consumers whether buyer or seller.  It really is a matter of 'Take it or Leave it'.  Ebay don't differentiate, or discriminate, everyone is ignored and nobody it seems has any recourse against their conduct or their UA, (which they always send a link to, in answer to any dispute with them).  Bit like saying read this and suck eggs.

So if we consider Ebay's UA a 'take it or leave it' Standard Form Contract, it further reinforces the fact that those contracted under it, have no power of negotiation.  It should therefore at least be a 'Fair Contract' that includes a reasonable right to recourse.  I don't think that's an unreasonable expectation.

But it also begs the obvious question: If ebay claim to have no role in the negotiation of this take it or leave it contract, (as they have argued to avoid regulation in the French example), and neither sellers or buyers have any role in the negotiation of Ebay's 'take it or leave it' UA, then who the hell does have a role in negotiating these contracts? The Tooth Fairy?  The contract of sale is also flawed on this basis, because it apparently relies in part on both parties having agreed to Ebay's UA, which of course, seems to favour only Ebay.

I personally believe that Ebay consumers are the most vulnerable consumer group in Australia, possibly also the largest.  In 2008 alone there were apparently over 7000 people defrauded in 5 separate scams, and we all know how easy Ebay made it for them to seek recourse, even against the so called safest payment method on the net?. 

So if ebay are able to find a way out of this legislation It would be a real slap in the face to consumer protection, and one would ask the regulators therefore, Why Bother ?. If we are not the largest group of unprotected consumers in Australia at this point, under an unfair contract that even Ebay claim no role in the negotiation of, when it suits them, then what are we?   E-Commerce Collateral damage? Roadkill on Ebay's Strip mall Super Highway? 

This is just my consumer opinion.  Others might have a different viewpoint.

[Rebel*1*]

I've been looking into the definition of "main subject matter" in consumer contracts, as this issue has been the subject of lively but nonetheless constructive debate on another thread: The debate is more appropriate on this thread, where consumer contract stories can be posted also. 

Based on a laypersons interpretation of what I've read on 'consumer, legal and industry sites, "Main subject matter"  refers to the particular type of product that the contract is for.  This means a consumer cannot later challenge as unfair the particular type of good or service that they knowingly signed up to.  i.e. they can't say that they didn't realise they were involved in an 'Auction'.  (See Wirraway Example)

In that regard, there is no dispute, that Ebay, in hosting online auctions, is providing a service - the provision of a venue for  auction - to both sellers and buyers. (Evagora v Ebay)

In fact that aspect has been defined very well by Victorian Law which this new legislation will rely on to set the bar. It seems to me that Evagora v Ebay not only acknowledged the 'Main Subject Matter' of Ebay's contract, but defined it to a point where Ebay can't dispute that they are a SERVICE PROVIDER for the purpose of a Fair Trade Dispute.

Irrespective of the 'Main Subject Matter' of the contract, or its endless waivers in that case, Ebay was still considered to have an obligation to its consumers to ensure that any limitations associated with the use of its online auction facility are clearly notified to prospective users.  Where limits apply they must be clearly spelt out (Evagora v Ebay)

Overall, it wouldn't be unreasonable to conclude (as a consumer) therefore that the Main subject matter of Ebay's contract, does not excuse them from the provisions of the UCT laws or consumer protection standards.

Whatever they call themselves, and whatever they waive in their endless consumer contract,  They are still a service provider, for the purpose of any Fair Trade Dispute.  That is already in precedent and can't be ignored.

But as I've said, if Ebay's contract is not exempted, then where does that leave Sellers?  The provisions of this legislation do not include them, and that's why I've posed the question of whether Ebay will develop a fair commercial agreement for business sellers. 

Even so, irrespective of how this new legislation may apply to Ebay, Consumers generally should be very interested in these new laws because they pertain to ALL manner of standard form consumer contracts and misleading practices, not just ebay's.  We also need to be wary of the ways in which these online UA's seek to 'contract', and place conditions upon customer service itself by comparison to the 'real world'.  It's all a bit predatory, and I'll give an example of that phenomenon shortly.

[Rebel*1*]

A true story:  How the net is changing consumerism as we know it, and imposing 'contracts' over basic customer service.  Don't be fooled, the old fashioned way of shopping still respects consumer rights, and customer service better than any online equivalent, with no contract required. 

7 weeks ago, I ordered two CD boxed sets from a large online music site that also has B & M stores across the Nation.  Long story short, I paid via credit card, and it took them 7 weeks to advise that the items were no longer available.  Meanwhile, the charge existed on my credit card for 7 weeks with fees for my trouble,  but no CDs. 

In fact, I had to email them to ask why the CDs hadn't arrived yet. They didn't let me know at any stage of the transaction that they were in fact deleted by the supplier.   When you consider that they charge the credit card through checkout at the time of purchase, it's just another example of putting all the onus, risk, inconvenience and cost upon the customer in this new age of E-Commerce contracted consumerism. 

So, I started searching the net and found another online music site, that also has B & M stores Nation Wide.  They too had these CDs listed on their site, but before I entered into a 'User Agreement/Contract', just to buy these titles, I wanted to first find out if their supplier was actually able to supply them.  So I emailed their Customer Service asking if they could verify availability of these titles before I joined the site.

They replied saying they could only verify availability of a product in their stock list, after it had been ordered, but not beforehand.  They invited me to join their site instead, order the titles, and then and only then would they go out of their way to check if the titles were available.

Convenient right? for them maybe, but as a consumer, I found myself asking the obvious question everyone should be asking.  Why should I Join a site, give them all my details, agree to be contracted to a document that favours only them, just to make a simple product availability enquiry?   

In the interim, they promised that unlike the other site (which I hadn't named), they wouldn't charge my credit card until the order was actually ready to ship and all goods available were included.  That was one step better than the other site, but it implied that I would be required to give them my credit card details and an authority for them to charge it, when they saw fit and for whatever amount they determined was due.  What? Unlikely !!!  Have you ever tried to get rid of a debit authority?

Anyway, with my pocket almost dripping wet,  I decided instead to shop the old fashioned way.  I picked up the phone and called the closest of this sites' B & M stores.

Without having to join a club, agree to a contract or hand over a credit card authority, the sales staff were able to check both titles on their computer, advise me that BOTH were deleted titles, and that only one of each existed in two different stores.  Sensing my definite enthusiasm, they then offered to have the last of each boxed set sent to their store, and to phone me when they had arrived so I could pick them up.   

Upon telling the sales assistant that I was in fact 100kms from their store, they further offered to let me pay via direct deposit, and although they don't usually do business this way (in this century anyway), they were happy to post the items to me via registered post.  So much for the ease and convenience of shopping on the net right?.  Rural consumers are still having to do it the old fashioned way.

One might ask why the online store didn't offer to do the same thing to assist me as a potential customer, in exchange for a consumer contract complete with debit authority?  They could have just as easily accessed the 'in stock' inventory as the store did, and secure those sets for me the very same way.  But they were more interested in pushing a contract upon me than actually assisting me to purchase the only remaining sets in stock.

The store required no such contract to make the very same enquiry on my behalf, or to order both of them in for me without payment or deposit. 

This is a basic example of how the net is negatively changing consumerism and diluting all level of consumer rights and customer service via these vendor weighted 'take it or leave it' contracts.  It's high time that this predatory culture was nipped in the bud.

The conduct of both of these online stores is misleading and their UA's heavily weighted to their advantage.  But not for long.

Nobody will realise just how broad sweeping this legislation is until all businesses start complying (or not) and consumer complaints of misleading conduct start getting heard instead of totally ignored. 
 

[Rebel*1*]

Courtesy of bnwt, this is a great example of Ebay the 'venue',  undermining the reputation, and autonomy of small businesses, with yet another of their so called 'innovative disruptions'.  As if the payment reminder spam; weighted search engine; and one way street feedback system wasn't damaging enough?  

This is exactly what I'm talking about in terms of Business Sellers standing up (worldwide, not just in Oz) and demanding a fair commercial agreement.  Otherwise, for any serious business, it's like building your house upon the sand - quick sand.  

Thanks for your purchase, here’s a unpaid item dispute

by Sue Bailey
Ouchy
Creative Commons License photo credit: 1Happysnapper (photography)

eBay has rolled out its automated unpaid item dispute process – and for experienced sellers it will probably come as no shock to hear that it doesn’t work properly. Sellers are reporting various problems, but most consistently that buyers are getting a UID reminder immediately after purchase.

Fortunately this is one feature that sellers do still have the facility to turn off, so if you haven’t yet, I suggest you do so immediately. Where sellers have contacted CS, they’ve been told that a fix is coming, though there has been no official announcement of any problem.

But there’s a bigger issue. Just like last week’s problem with dispatch emails not being sent out until long after goods were delivered, this is a problem of eBay’s making. And it’s a problem that is going to directly impact sellers. Buyers don’t – by and large, unless they’re sellers themselves too – distinguish between eBay and the seller: “I bought it on eBay”, not “I bought it from Biddy’s Bead Shop.” So telling them that these stupid communications are eBay’s doing isn’t going to make a difference – and why should it? It isn’t their problem. All a buyer is going to know is that they were sent stupid email last week, and offensive email this week. eBay lets them score them transaction on communication – and they’re surely not going to give 5/5 for this cock-up.

If eBay is going to score and punish sellers for things like communication, we must all be certain that eBay itself is doing nothing to influence that score. Clearly, that’s not the case: eBay is – well, if I write what eBay is doing to communication DSRs, I’ll have to pinkslap myself for Using Naughty Words. Suffice it to say, the effect of these glitches on communication DSRs can only be downward.

Some people have called for the communication star to be suspended until these glitches are fixed. That’s not a solution. As we’ve seen before, suspending one score has unintended consequences further down the line, and can lead to sanctions being levelled against sellers who would not have had those punishments if the score had never been suspended – just because of the crazy maths involved in this system.

All this mess does, in fact, is to highlight just how ridiculous eBay’s feedback system now is. If you can lose your place in eBay’s marketplace because eBay itself can’t get its programming right, how much of your business do you want to rely on that marketplace?

http://tamebay.com/2010/06/thanks-for-your-purchase-heres-a-unpaid-item-dispute.html

eBay Angers Buyers and Sellers with Unpaid Item Emails
By: Ina Steiner
Sat June 26 2010 026:09:42

Yesterday (June 24), eBay began filing automatic UIDs (Unpaid Item disputes) on some purchases without giving buyers time to pay for the item. A buyer wrote to AuctionBytes saying she had 3 non-paying bidder notices within 20 seconds of buying the items from a seller, and said she would be shopping on other sites in the future. And this morning, eBay sent emails to sellers who had opened Unpaid Item Disputes today an email that gave them 1 day to close the case or else they would not receive a final value fee credit.

In her letter to AuctionBytes, the buyer wrote, "I checked my Resolution Center and it is showing 3 Unresolved UPI Cases Against me filed by UPI Assistant. Nothing like chasing away buyers!"

http://blog.auctionbytes.com/cgi-bin/blog/blog.pl?/comments/2010/6/1277525382.html

Basically Ebay's only role as a so called 'venue' is to verify, monitor and promote sellers, and to deliver a safe and fair marketplace for consumers, not to interfere with the transaction between buyer and seller to the detriment of either or both.  That's the very reason consumers and traders need to be differentiated, and given separate user agreements setting out the rights and responsibilities of each party including Ebay.

[Rebel*1*]

I didn't think it would take them long.  Ebay are already lobbying and trying to have themselves excluded from these UCT Laws by muddying the waters as usual.  This is a site with recent harnsards on the new UCT laws. http://www.openaustralia.org/debates/?id=2010-06-23.151.2

Bruce Billson in particular represents ebay's obvious argument for exemption as follows.  This is what he had to say:

I was speaking with eBay just last week, and they are quite concerned about how these provisions may impact on their business model. They are providing and facilitating a marketing and distribution channel without taking any custodial or proprietary interest in the products that are being sold through that channel. But, to the extent to which warranty expectations are already a part of their business, with people purchasing online using the mechanisms available through eBay, finding that that experience is not quite what they wanted as customers and then going back to eBay to raise the points with eBay, they are saying, ‘These aren’t our products. We are not endorsing the products; we are just facilitating a transaction between parties.’

I suppose eBay’s concern is that with this belief that they are somehow embedded in that transaction and with the warranties that are being implied in this bill they will be caught up in that even more. Again, we do not know whether that issue will materialise or not. What I do understand is that about one-third of eBay customers are churned each year, and eBay’s research suggests that that often has much to do with people’s dissatisfaction with a transaction from a buyer or seller point of view. It is not the technology, the platform or the marketing process that eBay facilitates but the parties that make use of it, yet eBay comes within that experience and is often contacted by people looking for a remedy for a transaction that they were not happy with.

Oh Really?  I'd say the last two years of disruptive innovation would prove that little statement wrong.  I think consumers of the ebay product (particularly sellers) might be able to come up with endless complaints about the technology the platform the marketing process and the USER AGREEMENT, that lumps traders and buyers into one big muddy pool of unprotected 'consumers'?  Maybe not even that if Ebay have their way.  Apparently we're neither consumers nor small businesses.  We're collateral damage in the Ebay profit war?

When I can find the energy I intend to write to this minister setting out a consumer perspective in reply to Ebay's predatory 'take no responsibility' business model being threatened by our silly consumer expectations.  Unbelievable.

How or why does this minister suppose that so many consumers become unhappy when a transaction goes pear shaped on ebay?  Because they have no recourse against Sellers or Ebay if they get ripped off maybe?  

Would anyone imagine that Ebay might have some obligation to ensure that sellers are therefore verified (via objective Aust Post 100 Pt ID check) before granting them access to a Nation Wide Pool of Potential victims via their 'Platform'?

Would anyone consider it unreasonable for ebay to ensure that sellers on their site are investigated and monitored for any misleading or dishonest conduct reported by consumers?  After all, those same sellers ripping people off would not be able to impact so many consumers if they were not using ebay's 'Platform' to reach so many.  Whilst sellers remain unverified, they are not accountable to our laws, and ebay can avoid accountability for everything they do to con consumers on their 'platform'.  How convenient eh?  Russian Roulette E-Commerce anyone?

Only ebay can limit a sellers reach and access if they engage in misleading conduct or fraud, but they don't have a great track record in that regard do they?  And whilst they provide no reporting system for buyers who are defrauded, rorted or have their contracts breached, they can cheerfully ignore any accountability while the seller happily continues on?.  Meanwhile waiving their unfair consumer contract in our faces for daring to complain?  

It's just So ebay.  To hell with consumers, to hell with small business, only ebay's predatory business model matters?.    

[*Yibida*]

Please wear Gum boots before entering..

According to the spiel in the link below they are as big as banks.. And still answer to no one !...


http://www.ebayinc.com/who

[Rebel*1*]

Consumer Translation:

With more than 90 million unprotected consumers globally, eBay is the world's largest online Russian Roulette marketplace, where practically anyone can be ripped off by practically anyone. Founded in 1995, eBay connects a naive and largely uninformed community of individual buyers and totally unverified sellers, as well as small businesses, some of whom we allow to trade whilst insolvent and defraud thousands via our 'Platform'. 

Our indifference to defrauded consumers is staggering.   In 2008 over 8000 unsuspecting consumers were defrauded by sellers displaying our powerseller logo and paypal protection logo because we don't bother to monitor their conduct.

Nevertheless in 2009 the total worth of goods sold on eBay was $60 billion -- $2,000 every second.   So who cares if consumers actually receive their goods or not, as long as our fees are paid.  And don't you forget it.

As a consumer, What blows me away is Ebay's constant denial of any involvement in these frauds.  Taking EBS as a classic example, Ebay allowed them to display the Paypal logo, whilst breaching the terms.  They allowed them to display the Powerseller logo, implying that the seller was a veritable 'cornerstone' of the ebay community (as their blurb suggests).  They let them keep trading as hundreds and hundreds of negs were logged within a matter of weeks, and they allowed them to get into almost $250,000.00 worth of debt in unpaid fees? (according to media reports) 

Blind Freddy could see how Ebay contributed to that fraud because they allowed the seller to remain on their site no matter what.  The obvious question would be why Ebay allowed EBS to keep trading when they owed fees? 

God knows the average seller account is suspended if they owe $20.00, let alone $200,000.00.   Then, to add insult to injury they apparently lodged a claim as one of the first creditors, whilst telling victims to suck eggs?  How can anyone figure that Ebay didn't contribute to that consumer fraud via their total indifference?  They should have shut EBS down when they reached a certain level of unpaid fees, or intervened when they had received 20 negs, not 800.  That would have spared thousands of consumers from being misled and ripped off, but they did NOTHING !!

If as Billson asserts on their behalf,  Ebay are merely a facilitator, then what exactly does 8000 defrauded consumers represent?  What do the latest 2100 defrauded consumers represent?  Facilitated fraud?  Collateral Damage?  Are we consumers or moving targets?  Without access to Ebay's platform those sellers could never have defrauded so many.  So hands up everyone who can see ebay's role in mitigating this obvious risk? 

How can educated people fail to look past their noses when it comes to Ebay?  These frauds have been going on for years and Ebay have been ducking accountability for years.  The precedent consumer fraud study 'Going Going Gone' detailed this in 2006, ebay ignored the conclusions and recommendations, and only two years later over 8000 were defrauded, with more than half having used the safest payment method on the net right?  sheesh.  Fraud starts and finishes with the seller, not the payment method. 

What I can see is a consistent stream of defrauded buyers and once bitten = twice shy.  If only Ebay would clean up their marketplace, buyers would feel more confident of having recourse if a seller misleads or defrauds them.  Right now, even the police throw their hands in the air with the HUGE number of consumer fraud complaints originating from ebay.   Surely something has to be done to protect Ebay consumers.  Sellers must be verified and accountable to our laws, that would be a good start.

(Please note that the above is not meant to reflect on decent and honest sellers, but whilst fraud exists on ebay, all sellers are damaged by association.  It's in everyone's interest to help get rid of the shonks)

[Liisa-Sx]

Hi rebel, what amazes me is eBay continually dodge the bullet on almost every front, they seem accountable to none.

It appears that eBay fingers in so many political pots, even the editor of the NY times is/was on the board of directors, that they are able to slide through legal fingers waving smoke and mirrors and brandishing deep pockets, several other board members have held in the past or currently hold heavyweight media or financial positions.

Mind you some of those appear poised to jump ship and will not be riding it out for the 2011 Annual meeting, there are three that will definately be re elected http://www.faqs.org/sec-filings/100430/EBAY-INC_8-K/

Ebay have crept like a plague undetected via so many avenues it makes the mind boggle they have the media and in some areas the political arena sewn up, it is only when the outcry is too large to be ignored that they ride in on their white horse spewing spin and 'discretionary refunds'.

Not too long ago Ebay was in a legal battle with Craigslist a company of which to my knowledge they own a 25% stake http://www.courtroomview.com/proceedings/craigslist-v-ebay-trial-2009-10-05   eBay alleged that Craiglist's directors unfairly diluted eBay's 28.4 percent minority shareholder stake in Craigslist and eliminated eBay's right to appoint a director.

When Ebay could not get a toehold on a sizeable share of Craigslist, despite owning some of the company they decided to renew their attack in the last few months http://industry.bnet.com/technology/10007571/ebay-renews-assault-on-craigslist-with-buzzwords/, funnily enough it's not working and eBay once again look like a thwarted schoolboy screaming "I'll get you, I'll get you and I'll tell my Dad too !!!!"

[Rebel*1*]

Hi Liisa, Yes,that seems to be the main focus of their predatory monopolistic 'business model' but it's definitely not new for them.  Anyone who remembers sold.com will remember that once upon a time they were the first online auction site in Australia.  But ebay found a way to get rid of the competition quick smart.  

Fairfax, publishers of The Age, and News Limited, publishers of the Herald Sun, set up online auction sites Sold and Go Fish before eBay landed in Australia in October 1999. But both bowed out in the wake of the eBay juggernaut.

Sold was launched in June 1999 and enjoyed early success head-to-head against eBay. It was acquired by global internet giant Yahoo! in February 2001.http://www.smh.com.au/articles/2003/07/23/1058853125900.html

But within Two Years Ebay found a way to bribe Yahoo into closing the site down.  Specifically:  http://www.smh.com.au/articles/2003/08/06/1060145721367.html

Yahoo! has closed its Australian auction website, sold.com.au, after signing a marketing deal with rival eBay.

Yahoo! bought Sold.com.au from John Fairfax, publisher of The Sydney Morning Herald, for $24 million in 2001. Fairfax said at the time that the sale had earned it a profit of $12 million.

Yahoo! managing director Cliff Rosenberg would not disclose terms of the eBay deal, but said it was more than a cross-marketing initiative.

"It's a financial relationship - they will be a big media partner of ours," Mr Rosenberg said.

The headline on zdnet went something like this:

Yahoo auctions crushed by eBay
http://www.zdnet.com.au/yahoo-auctions-crushed-by-ebay-120276951.htm

Yahoo will close its failed online auction business, SOLD.com.au, on August 20th, in a move that will leave dominant player eBay in a monopolistic position.

Even as far back as 2003, it was recognised that Ebay would be left as a dominant monopoly in the online auction/bin marketplace, but they managed to deny that all the way through the ACCC related protest and even now.  

Meanwhile, there are still NO viable alternatives for Australians to buy and sell online, and give Ebay the flick altogether?  I'm sure ebay buyers and sellers would be gone in droves if there were a competitive alternative but there isn't is there?.  Ebay won't allow it.  

Oztion in particular are a bit of a joke in my view.  They haven't yet grasped the concept of 'ADVERTISING', (even when ebay lay opportunity after opportunity at their very feet to capitalise on).

Many people believe they are just waiting around for Ebay to buy them out.   Either way, they are just a 'mini me' of Ebay with the same hostile forum culture, the same 'screw you' customer service policies, and almost identical 'Take no Accountability' UA.  Oh, and of course, no phone contact.  So ebay !!!  

Anyone who has ever used Oztion will tell you that they are no competition (fees or not).  More like a clone, right down to the same negative reputation.  So the choice is, either put up with ebay style arrogance on Oztion with few sales, or put up with Ebay arrogance directly with at least some sales.  Choice?  

This is the Predatory 'business model', that Billson is apparently defending at our expense?  Notice how he doesn't leave room or even the slightest consideration in his hansard for 'consumer and small business' response to Ebay's so called 'concerns'.  Notice how there is no consideration given to why there might be so many thousands of disgruntled consumers or traders??  

Notice how Ebay only have to have a 'chat' with a Pollie and it appears in a hansard?  Meanwhile thousands of vulnerable Aussie consumers and traders can tell it to the wall?  One has to wonder what Ebay contributes to this country that it is so worth defending at the expense of 5 million consumers/traders?  Taxes?  Wages? Good deeds? anything?  

During the rebellion in 2008, consumers had to literally bombard Politicians to get their attention, amidst breached consumer contracts, exclusive dealing, and over 8000 defrauded buyers.

Yet all Ebay has to do is have a 'casual chat' with a Liberal Pollie and they are represented in hansard??  Unbelievable.  

[Rebel*1*]

Good to see Phil having a say on OpenAustralia in reply to Bruce Billson's hansard.  I will be commenting later today and I urge others to join that site and voice their opinions.  It's about time Mr. Billson heard from the victims of ebay's predatory business model and 'One Size Fits All' contract.    According to Ebay all the problems on their site are our doing.  The buyers and sellers.  Those who ultimately pay for all this consumer and small business carnage that ebay 'Facilitate' via their indifference and ignorance of both groups.   

http://www.openaustralia.org/debate/?id=2010-06-23.153.1&c=305#c305

This opportunity to have a say won't come again, so if you are an ebay small business wishing to seek something as basic as acknowledgment and recourse when Ebay dominate you via their 'Unfair' contract, then here's your chance.   Differentiate yourselves as small businesses, Ebay will never do it.

Ripped off Consumers on the other hand, might have a lot to say about Ebay's facilitation of massive frauds by way of their complete indifference to proactive risk management.  Frauds like EBS should never have been allowed to get so huge and wide spread.  In my humble opinion, Ebay was the only party that could have mitigated that risk, nobody else.   It's THEIR platform isn't it?  And yet there were a further 2100 victims of yet another holiday scam only recently?

If anyone needs consumer protection under these new laws it's Ebay consumers.  If Ebay are required to adhere to this legislation then it will indeed threaten their 'predatory business model' because for the first time ever, they will have to acknowledge that consumers and traders are separate entities, just as surely as the legislation itself certainly does. 

One thing seems certain though, If ebay are exempted then we remain the largest, most vulnerable group of unprotected consumers and traders in Australia. 

(This is just my consumer opinion.  I'm still rather fond of the concept of a 'fair go' and that starts with an 'Even playing Field'. )  Dreamin?

[Rebel*1*]

Oh Dear, I see Phil's comments have been deleted.  Perhaps it's not quite as 'open' as the site name implies? Better put on your PC hat next time.  Or perhaps we should just post a link to this thread and the various 'Hate Ebay/Paypal' sites so Pollies can read consumer opinion right up close and personal ?   

Mind you I'm not having a go at Billson because he can only put forward what ebay is arguing in good faith, and equally you can't blame ebay for trying.  That's capitalism for you, it's their job to ream us for every red cent they can get their hands on, in this E-Commerce battle of the fittest. 

What annoys me is that ebay have a hotline to our politicians whilst thousands of consumers/small business traders, had to beat their doors down to get their attention in 2008, amidst breached consumer contracts,  Exclusive Dealing, and 8000 frauds?  Even now, Two years later the frauds are still happening under Ebay's nose and in spite of PreyPal the safest payment method in the whole wide world. (tongue firmly planted in cheek)

I consider ebay's entire approach in the past two years to be misleading and weighted to their advantage no matter what.  They'll say anything it seems to escape accountability, in their 'Gollum' like obsession for the 'last red cent'. 

For instance, Prior to their purchase of Paypal, (and in reply to a precedent consumer protection study and allegations of fraud on ebay being rife) Ebay argued that fraud on their site represented only a tiny weeny teeny percentage of all transactions. 

But when they decided to push paypal down our throats it was on the basis of fraud being rife? and there being no other safe way to transact on ebay?  Flip flop, flip flop.   

During the ACCC rebellion period ASIC had recommended that Paypal sign the EFT code but they declined.   Only a few months later, when questioned over their accountability in the EBS debacle and refusal to sign the EFT code They were quoted thusly:   

 Feiler also moved to explode the “myth that PayPal is not regulated in Australia”. He points out that while PayPal is not a party to the EFT code, it does have a banking license and is regulated under Australian banking laws. “Anyone with a complaint about the PayPal dispute resolutions process can take it to the banking and financial services ombudsman and have that third party review the case,” he says.

“PayPal standards either meet or exceed the EFT code of conduct. PayPal does have systems in place that should give all Australian users certainty that they are dealing with a body that is regulated.”  http://www.smartcompany.com.au/financial-services-and-insurance/ebay-sellers-launch-a-second-wave-of-attacks-over-paypal.html

So, with all these fabulous security benefits,  Why not sign the EFT code and put "OUR" money where their mouth is? 

The truth of the matter is that Fraud on ebay has been unmitigated for years (in spite of Paypal's illusive buyer protection being imposed on sellers in recent years)  I cite once again the precedent ebay consumer fraud study entitled 'Going Going Gone', released in 2006, and quoted in the 2008 ABC feature on ebay fraud.

In the same ABC feature (two years after the release of that report and with a further 4000 defrauded in the EBS debacle) Elizabeth Beal, Former Director of Comslaw said this:

I don't think there's any real motivation for eBay to stop fraud. They still benefit from fraudulent sellers because they still collect the fees.

KERRY BREWSTER: Elizabeth Beal oversaw a report into the rights of online consumers. Almost half of the eBay users she surveyed had experienced a bad purchase, with most buyers unable to find the seller or get a response from eBay.

ELIZABETH BEAL: eBay have an obligation to provide a safe system and operate in a way that prevents negligence, if they are benefitting from the transactions taking place. So in our view there are legal obligations on eBay that have not been fully tested.

Here's a link to the ABC feature of 2008 for those who wish to read up on how long this has been going on, and exactly what Ebay has done to clean it up in all this disruptive innovation?. Zip, Zilch, Naught, Nothing. 

Cyber crime on the rise
Australian Broadcasting Corporation
Broadcast: 02/10/2008
Reporter: Kerry Brewster
http://www.abc.net.au/7.30/content/2008/s2380759.htm

[Liisa-Sx]

Did anyone see the Story that today tonight did on Thursday the 8th of July (I think it was) regarding the Accommodation 1 scandal in queensland?

A few posters on the ebay boards said this:

nannanickers 8/07/2010 10:19
to all those people out that like me that got ripped off by accomodation one ( gifts 2 u) today tonight has a special on tonight confronting that crook that stole our hard earned money. hears hoping that some justice is done for all that he has put people through.
   
     
better-than-sex
I saw that gutless lowlife on the show, what a shocker. All those disappointed kids too, GRRR!.

I can't seem to find it and I would be very interested in seeing the story.

[Rebel*1*]

Hi Liisa, can't find it yet, but no doubt it will show up.  When it does, can someone post it please?. 

We have been trying to find out if Gifts2U owed any unpaid fees to Ebay.  Has anyone seen the list of creditors yet?.  If so, that too would be very very handy to know.  If as with EBS, this seller also owed fees to ebay, then you'd have to be questioning Ebay's role in constantly 'Facilitating' these scams, (or at the very least, insolvent trading) on 'Their' Venue.   

The very fact that once again the seller was displaying the Paypal logo whilst breaching the policies, along with displaying the powerseller 'cornerstone of the community' guarantee, is evidence that ebay obviously learned nothing about risk management from the EBS, DDD, & LI scams (amongst numerous other scams) in 2008.   They still allow UNVERIFIED Sellers to mislead consumers by displaying these logo's but refuse to monitor the use of them.

Does anyone think that Ebay might have a responsibility to ensure that any seller displaying the Paypal logo actually abides by the terms and conditions before misleading consumers on EBAY'S VENUE that their purchases are protected ?. 

Does anyone think that sellers displaying the 'Powerseller Guarantee', should be expected to live up to the claims and consumer expectations of that status?  i.e. 'Cornerstone of the community' and all that crap?   

The way I see it, Powersellers are rated more by the Profit they make for ebay, not how they do it or whether it's legal or ethical.  And if anyone thinks that certain powersellers don't have special conditions, think again. EBS was Ebay AU's 7th largest powerseller and they owed approx. $200,000 in unpaid fees with hundreds of negs and thousands of victims, by the time they were eventually shut down. 

Ebay could have shut them down with 10 negs, 20 negs, even 50 negs, but they did Nothing. Were they hoping that they'd trade their way out of their debt with Ebay?  Is that why they didn't shut them down when the damage and risk to consumers, was only minimal but nonetheless OBVIOUS?? 

If Ebay had acted responsibly in the EBS example, the consumer carnage that followed would have been prevented.   But they don't give a damn.  That's obvious, in fact it's self evident.

Ebay are the only party able to grant access to, or remove access from their 'Venue', but in the Gifts2U debacle, (as with EBS) they didn't even bother to check if the product being sold was legal, licensed, or tangible, or that the use of the powerseller and Paypal logo were not misleading a NATION WIDE POOL OF UNSUSPECTING VICTIMS.  They DO have a duty of care unless they are willing to state unambiguously that the Paypal and Powerseller logo mean nothing and cannot be relied upon by consumers.

I would say to Mr. Billson, Yes, they are a 'Facilitator', but they facilitate much more than just C2C or B2C E -Commerce.   It's time Ebay were held accountable for the fraud and insolvent trading they also 'facilitate' via their complete indifference to proactive risk management.