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 "unfairA 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 AUCTIONSRelatively 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...h97Se53384Evagora V Ebayhttp://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2001/49.html?stem=0&synonyms=0&query=evagoraFindings 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 outSpeaking 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 BusinessI 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 SandACCC UNFAIR CONSUMER CONTRACT TERMShttp://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)