I. The host status : An appropriate status for Ebay ?
At the outset, the ebay host status is called to question for 2 reasons :
- First of all, french courts of law ( civil, commercial courts of law and “la Cour d’Appel”) have established new praetorian obligations.
Secondly, most of french doctrine authors, like Jérome Huet (Professor in the university of Assas), allude to the various activities displayed on the ebay platform.
These new obligations supplement the host obligations which are already in charge of ebay website.
Before, according to the “Loi sur la Confiance dans l’Economie Numérique” (LCEN) from the june 21st of 2004, host websites have not a general monitoring obligation on classified advertisements.
French courts of law have rejected the ebay passive role recently.
Now, ebay must respect three new obligations such as a monitoring obligation, an obligation of vigilance and an obligation of information.
These news obligation raise several key issues. Indeed, these obligations overlook the original spirit of the french law inherent to the host status. The LCEN specifies that host websites don’t have to supervise each users content on their website.
They play down the neutral and passive role of Ebay and spotlight the commercial and complex activites on its website.
A case in point is the service which constits in helping to write advertisements or in advising to buy or sell.
That’s why a lot of authors argued that although a part of EBay’s activities could be qualified as hosting activities, it must be taken into account that some other activities widely exceed a basic storing activity.
Despite the doctrine and court law judgements, EBay goes on contesting this claim by pointing out that as a host, it has no general monitoring obligation. EBay also claimes that its position as a host exempts it from liability regarding the contents of the offers posted on the website by sellers.
So what kind of legal status could be more appropriate to Ebay’s activites ?
II. Ebay status : online editor services ?
The main topic of discussion here consists in specifying the legal status of the auction website.
French precedents have rejected the host definition.
That’s why french doctrine authors and judges had to suggest a new status, which implied a new liability system.
A french court of law (TGI de Troyes) passed judgement on ebay status on june the 4th of 2008. The court ruled that eBay wasn’t defined as a host but as an online editor services.
The online editor services status is not specified by the french law. That’s why judges have strictly defined this status. They’ve refered to the organisation of contents on the website and to the carrying out of editorial choices. This definition is more appropriate to Ebay’s activities.
In France, recent precedents have definitively brushed aside arguments about the hosting activities of ebay. For instance, we can refer to the Ebay case.
Although judges seem to have given up this status, we mustn’t forget that judges’position is not definitive.
Only future decisions could tell us more about the legal status of Ebay.
I’d like to conclude by stating that France remains an exceptional case where host status is called to question.
In belgium and in the United States of America, recent precedents keep on recognizing and protecting Ebay’s host status.
To illustrate this point, Cosmetics manufacturer L’Oréal lost a battle in its counterfeiting war against eBay 3 months ago. In its judgment of July 31st, 2008, the Belgian Commercial Court dismissed all of L’Oréal’s claims against the online auctioneer and, moreover, ordered the cosmetics company to pay court costs. The court ruled that Ebay, regarding the advertisings posted its website by sellers, is considered to supply a hosting service, for which it can benefit from the liability exemption. Furthermore, the court emphasizes the fact that eBay did not have "a general monitoring obligation.