eBay case dropped

The GOC was licking its wounds this week after dropping its illegal contact lens sales court case against eBay.

And the brouhaha may not be over yet, as the Harley Street regulator continues to wait for eBay's response after the GOC's 2005 statement which initiated the action was called 'libellous' by the internet auction house.

Nevertheless the GOC remains vocal about unregulated sales of contact lenses via the internet, and has raised its concerns with the DoH.

In September last year the regulatory body launched its high-profile offensive against the internet auction house, issuing 10 summonses under the Opticians Act. The online business had been accused of 'aiding and abetting' the sales of contact lenses without the involvement of a qualified practitioner.

However, on Monday the GOC dropped the case at a hearing that barely lasted 20 minutes after discovering that eBay could not be prosecuted under existing regulations as it is a 'hosting company' under the European eCommerce Directive, and that eBay UK cannot be required to actively monitor its listings.

The British site is not operated by eBay UK, but by Swiss-based eBay International, and the company said it ultimately had to rely on third parties, including regulators, to monitor its millions of new listings.

Addressing a London magistrates court Nick Leale for the GOC said: 'The Council now takes the view that, although it was appropriate to issue the summons, there is now no real prospect of providing them to the required standards.'

He admitted that under regulations controlling e-commerce, hosting companies such as eBay cannot be required to actively monitor listings, and the site does not sell goods, but hosts commerce.

Mark Milliken-Smith for eBay said that sales of contact lenses had always been prohibited on its website.

In a statement eBay said that the case reinforced its position as an 'information society service provider' that hosts third party content and does not have any obligation to monitor its site for illegal content.

Robert Miller, former director of legal affairs at eBay (UK) (now general counsel at Skype, an eBay subsidiary) said: 'eBay has an extensive notice and take down programme to try and ensure that illegal activity doesn't take place through its website; however, it relies on the vigilance of third parties, including rights owners and prosecuting authorities, to identify illegal items and contact eBay.

Illegal activity via eBay's website is transparent to those who are expert in their field and allows the relevant prosecuting authority or rights owner to chase down the perpetrators.'

The GOC tried to offset the failed prosecution by issuing its own statement (see panel) which emphasised that lenses should be fitted by a qualified optician or doctor. Later this month the internet sale of optical appliances is on the agenda at a GOC meeting.

GOC REFLECTS:

The GOC said its prosecution of eBay for aiding and abetting illegal contact lens sales highlighted a problem with laws on internet auction websites.

'The GOC brought the prosecution in the belief that eBay should actively monitor its website and de-list contact lenses that were being offered for sale unlawfully. The Council has been advised that under European law, www.ebay.co.uk, cannot be required to actively monitor its listings.

Peter Coe, GOC registrar said: 'The Council took action on this issue because of the dangers to consumers buying and wearing contact lenses which have not been fitted by a qualified professional.

We recognise that eBay has put in place listing policies addressing these issues and appears to be ensuring that unlawful auctions of contact lenses are removed from the website. Hopefully the public is also now more aware of the risks of buying and wearing contact lenses from unregulated sellers.

'However, this case has highlighted a loophole in laws designed for public protection. We feel that it is an unreasonable burden for a regulator, with limited resources, to have to monitor the millions of listings on auction websites. In effect, we would have to notify the website of each individual instance of an illegal sale in order for it to be de-listed...'