eBay Lawsuit Asks: Is An E-Commerce Store Really "A Place Of Public Accommodation"?

An eBay (NASDAQ:EBAY) court case poses a question that gets a lot more interesting the more you think about it: If an e-commerce site is used extensively by a large number of shoppers as their primary store, does it become subject to all of the laws that govern physical stores? The legal issue in this case involves a deaf seller who argued that accessibility laws required eBay and other e-tail sites to accommodate shoppers with vision and hearing difficulties.

The argument for the shopper speaks to the intent of the original legislation—or, more precisely, the intent of the legislators who crafted that initial legislation. Did they not indeed intend that if shoppers must go to public stores to make purchases, those stores must allow in and support all shoppers equally? The counter is that the law understandably makes no reference to e-commerce and that if Congress wants to pass such a law, great, but until it does, courts must assume that a law means what it says and nothing more.

The phrase at issue is "a place of public accommodation" and whether eBay—and, therefore, all major e-commerce sites—is one.

The plaintiff in this case is a hearing-impaired eBay prospective seller named Melissa Earll. Earll's argument is that, when she applied to be an eBay seller, the registration process required the seller to receive an automated call that would speak a PIN that would then have to be entered online. That tactic was impossible for Earll, the filing said. "Alternatives to the phone-based verification system that would allow deaf individuals equal access to the services eBay provides are readily available, but eBay has affirmatively chosen to use its current system and refuses to make accommodations for the deaf."

She argued that eBay today functions as a traditional storefront and must be treated accordingly. The Americans with Disabilities Act of 1990 "must apply to eBay. Any other result frustrates the letter and spirit of the ADA. To rule otherwise would require this Court—which is located in close geographic proximity to the headquarters of Google, Facebook, Netflix, and countless other Internet-only businesses—to conclude that the Internet, in 2013, is not an important part of the social and economic mainstream in America. Such a conclusion is patently absurd."

That said, the core of the case debates whether the legislation can be interpreted literally and both sides here push logic a bit in making their respective cases.That said, the core of the case debates whether the legislation can be interpreted literally and both sides here push logic a bit in making their respective cases. Given that the legislation was enacted in 1990, a point a few years prior to the Web's popularization around 1995, it's likely that legislators and their staff would have had no reason to even reference any non-physical storefronts. Therefore, it's hard to read too much intent into the law not mentioning e-commerce sites.

The plaintiff's argument: "Websites that affect commerce are places of public accommodation. The ADA does not say otherwise, and this Court must adhere to the rule that statutes say what they mean and mean what they say. If Congress wanted the ADA to apply only to physical places, then it would say so explicitly. Moreover, the legislative history of the ADA demonstrates that Congress intended for the law to be construed broadly."

EBay's counter: "While eBay does not dispute that the disabled deserve protection from discrimination, this case boils down to a straightforward case of statutory interpretation. Ms. Earll, however, misses few chances to steer this case out of the realm of law and into the realm of policy. She would have this Court substitute her policy judgments over that of Congress and the California legislature, manifested in the plain language of the ADA, DPA, and Unruh Act. In accordance with the ordinary and common-law meanings of the relevant statutory terms, Congress and the California legislature intentionally imposed the antidiscrimination mandates of the ADA and DPA on only real, physical spaces and limited the Unruh Act to intentional discrimination. None of those Acts is concerned with the facially neutral registration policy of a web-only business. If legislatures consider extending their laws to reach facts like those alleged here, they can balance the costs of regulation against the perceived benefits, then tailor standards and remedies appropriate to the unique circumstances of the Internet."

In other words, eBay is arguing that this needs to go back to Congress to fix.

EBay's response briefly touched on a key point, namely that they are alleging that eBay associates did indeed try and help Earll, details that the plaintiff originally mentioned in her lawsuit, and according to eBay's filing, then deleted from an updated version.

EBay makes a strong case, until this line: "Internet websites are not real, physical spaces. They are not 'places' in any sense. The Internet is a means of remote communication."

Only from a physics perspective is the Internet today nothing more than a "means of remote communication." From a metaphysics perspective, it has evolved into so much more and few understand that better than people at eBay. Are they actually arguing that Facebook and Twitter are "not placed in any sense?" Had they said they are not places in a physical sense, then, yes, of course that's true. Today, e-commerce sites are being treated by shoppers as congregation places, sometimes through shared simultaneous shopping events with friends.

There's also a practical flaw in Earll's argument. First off, there is a difference between how much a site should accommodate customers and partners, such as sellers. Instead of filing a lawsuit, would it not have been easier for Earll to have gotten a friend to listen to the PIN and write it down for her? The audio-portion of the process was a one-time event. There are no allegations that any of the rest of the eBay process posed hurdles for hearing-impaired sellers.

But as much as have the question of "was a lawsuit needed?" on the seller's side, a similar issue exists for eBay. The lawsuit is forcing them to say that the law, as it exists now, doesn't require it, which is probably the case. That said, isn't it in eBay's interests to have done it anyway? The mechanisms to make themselves more accessible to those with hearing and vision problems are truly not that expensive, nor intrusive. And if it makes it easy to let sellers sell, why not?

Japanese e-commerce powerhouse Rakuten is preparing to make a major U.S. push just before the holiday seasons kicks in this year and a big part of that effort is a campaign that they treat their sellers much better than does Amazon or eBay. Not an especially good time for eBay to be telling all hearing- and vision-impaired sellers that they're not worth any extra effort.

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