PARIS COURT OF APPEAL

14th chamber - section B, November 9^th, 2007

eBay Europe et eBay France c/ DWC

Keywords: online brokerage - suspension of accounts - obligation to restore (no) - hosting (yes) – application of general conditions of use

Extract:

Translated by Emanuela Catichi, Attorney at law – Paris and Bucarest Bar (Latournerie Wolfrom & Associés, Paris)

“Considering that eBay website is an online support allowing professionals or private individuals throughout the world, to buy or sale goods or services, that, as such, eBay company does not act neither on behalf of the seller, nor on behalf of the buyer, that it is an technical intermediary, third party to the sale, its intercession being limited to hosting the announcements;

That the activity of auction brokerage by electronic way conducted by eBay company falls within the scope of the definition of the article 6 – I -2. of the law of June 21, 2004 for the trust in the digital economy, according to which “the natural or legal persons which store – even free of charge [and] in view to putting them at the public disposal through public online communication services – signals, writings, images, sounds or messages of any nature provided by recipients of these services, cannot see their liability engaged for activities or information stored at the request of a recipient of these services, if they were not effectively aware of their illicit character nor of facts and circumstances revealing this character, or if, at the moment they became aware of it, they acted promptly to withdraw these data or to render them inaccessible”.

That, consequently, as it is reminded in article 3.1. of the terms and conditions of use of these services, eBay Europe company does not have the possibility to exercise a control “over the quality, the safety or the legality of the listed items, the truthfulness or the accuracy of online listings, the ability of sellers to sell said goods or services neither the ability of buyers to pay for the said goods of services”;

That, in spite of that, it is not exempted from being vigilant, to the extent of its means, that its website is not used for reprehensible purposes;

That, from its side, DWC company is obliged, as any user, to comply with all eBay rules which are incorporated by reference to the general conditions of use of eBay service, that it accepted;

(…)

That eBay company reproaches DWC company for having, given its bounds with XSS company, fraudulently accessed eBay website in violation of the interdiction applying to the latter, for having had recourse to the same manipulations to circumvent the negative evaluations and, like XSS company, for selling products of doubtful conformity;

Considering that XTREME SUPER STORE – XSS company (...) has for activity the sale of any kind of material for outdoor sports and, since January 19^th, 2006, the purchase of moped, scooters, quads (…);

That eBay company stated that XSS company, instead of opening on eBay website an identifiable account to conduct all the online sales, has opened several accounts under various pseudonyms;

That besides, eBay company stated that this company, (…) concerned by many clients’ negative evaluations, particularly because of the doubtful conformity of its products or the communication of false information about the products, [and] for circumventing these negative evaluations and for artificially obtaining laudatory evaluations, had had recourse to massive sales of items of low value, unconnected to its main activity;

That, finally, it became aware of an article published in the number of August – September 2006 of the magazine “ Le monde du quad” denouncing XSS company’s doubtful methods and the dangers of the articles, imported from China, which the company sells;

That it has therefore proceeded, during 2006, in application of the above-mentioned article 9, to the suspension of various accounts opened by this company; that these measures were not disputed; that they lead to interdiction for XSS company of using eBay website in any way whatsoever, particularly, by opening of new accounts or [other] accounts bounded to the ones opened by it;

That DWC company has been established between [the same persons who established XSS company], (…) that, registered on January 5^th, 2007, it conducts, essentially, an activity identical to the one of XSS company;

That it is demonstrated that, like XSS company, DWC company had opened several accounts on eBay website, under pseudonyms, and had recourse to the same manipulations to circumvent the potential negative evaluations which may result from the sale of moped, scooters and other machines also imported from China and acquired from the same providers;

That it is established particularly that, some internet websites of XSS and DWC companies have the same IP address and are hosted on the same server;

It follows that, given the elements in its possession, eBay company could legitimately believe that, as it was the case for XSS company, and given the clear bonds between these two companies, the exploitation method implemented on eBay website by DWC company was seriously exposing it to [the risk to] see its liability engaged and to the risk of jeopardizing its reputation and that it was a method to circumvent the interdiction resulting from the suspension of the accounts opened by XSS company;

Considering, furthermore, that, for technical reasons, it is not obvious that the activity of auction brokerage by electronic way may lead to imposing on eBay Europe company a warning term before proceeding to the effective suspension of the accounts when it notices a violation of [its] general conditions of functioning;

Considering, under these conditions, that the trouble invoked by DWC company because of the suspension of the dirtbike-paris, scoot-factory com, lemondeduspa_com, lemondedubuggycom accounts opened on www.ebay.fr website is not manifestly illegal; that the conditions of article 873, paragraph 1a, of the New Code of Civil Procedure being not fulfilled, the summary procedure judge has not the power to order the requested measures;

That it is appropriate, consequently, to invalidate the ordinance and to say that there are no grounds for summary procedure on the request intended [to obtain] the reopening of the said accounts on www.ebay.fr website as well as on the [other] websites of the European Union exploited by eBay Europe company and, consequently, to reject the incidental appeal intended [to obtain] the publication of this decision (...)"