Update: eBay Changes Hybrid Landing Pages (slightly)

Today, eBay's friendly compliance officer called again regarding the matter of hybrid landing pages (we have reported on this). He informed us that a change has been made in the meantime and everything is now in proper order. The withdrawal instructions, terms and conditions, and other legal information of the merchants are now accessible in accordance with consumer protection legal requirements. He is mistaken.

The change – demonstrated live on screen – looks like this: although the Buy Now button is not removed, the link displayed after the (abbreviated) product details now bears the text "View description / legal information". Previously, the text merely read "View description".

Since the judgment of the Federal Court of Justice (BGH) of 14.06.2006 (I ZR 75/03), it has been clear at least that the terms and conditions in distance selling and electronic commerce can also be incorporated via so-called "speaking links". Since internet users are familiar with the technique of linking, there is a reasonable possibility of notice if the link is offered at a prominent location. In essence, this also applies to information about the right of withdrawal, although the Federal Court of Justice (BGH) sets higher requirements for transparency here. A link is "speaking" "speaking" if its text unambiguously reveals what information is concealed behind it.

What eBay is doing with the hybrid landing pages has not complied with this before and does not comply with it now either. The link text "View description / legal information" does not suggest what is concealed behind it, namely the terms and conditions and a withdrawal instruction. The term "legal information", which can mean almost anything, is far too imprecise for this. Consequently, there can be no question of clear, understandable and recognizable incorporation. At a minimum, the following links would be required: "General Terms and Conditions and Imprint of the Seller" and "Information on Your Right of Withdrawal". Then the link speaks for itself to the seller.

It therefore remains the case that via eBay's hybrid landing pages, an order by consumers is possible without the terms and conditions and the withdrawal instruction being made accessible to them in the form required under applicable law (example see picture – click to enlarge). This harbours a significantly increased risk of competition law warnings, which affects virtually every commercial merchant, since the view can be generated for almost every product of every merchant.

When I expressed my concerns, the eBay employee stated that eBay has expert legal specialists (I am not entirely sure what he meant by that), whose expert judgment one can certainly rely on. Well then – hopefully they will remember that if trouble arises.