Angus Kidman16 June 2008, 2:12 PM
eBay now just has 12 days to convince the ACCC it isn't an anti-competitive rorter. Our lawyers have put some tips together for their lawyers.
eBay has set a new deadline for enforcing PayPal of July 15, after the ACCC comprehensively slammed its plans to make PayPal the only payment mechanism allowed for Australian buyers. Apparently not concerned that it's already coming across as the cyberspace equivalent of a schoolyard bully, the auction giant has vowed to "continue to fight for safety benefits for consumers".
Despite the bluster, and the presentation of this change as a near-certainty, eBay will only be able to push ahead with the new date if it can convince the ACCC to change its mind, something which 80 pages of legal documents hasn't achieved so far. While we'd frankly much rather not see eBay succeed, in the spirit of fair play, here's some suggestions of tactics the company could use.
(1) Drop back a notch and make PayPal compulsory, but not exclusive. Since last year, eBay has required newly-registered users to offer PayPal as an option on listings, and this hasn't resulted in any great legal dramas as far as we know. Requiring PayPal to be available, but not requiring it to be used, would give buyers who wanted safety the option, but wouldn't get sellers' backs up half as much as the current proposal. (The fact that eBay hasn't pursued this option suggests that despite its protestations, it's quite keen on collecting all that extra fee revenue from PayPal.)
(2) Propose something even more outrageous. A useful diversion: when Ben Elton, Rik Mayall and Lise Mayer were writing the classic TV sitcom The Young Ones, they would often put in deliberately offensive material that they knew BBC management would never approve — thereby distracting the producer's attention from the equally offensive but more subtle material they did want to retain.
eBay could learn from this. While it's hard to think of a scheme even more ridiculous than banning all other payment methods, there are a few possibilities. eBay could propose that only Safari could be used for accessing the site (Apple being a fan of compulsory downloads and all), or that only bid amounts ending in an uneven number of cents were allowed.
(3) Convince Google to play nice. One of the more amusing side distractions of this whole sorry saga has been the revelation that a submission opposing the proposal which had the senders' name blanked for privacy purposes actually came from Google. Though the odds are low, if eBay could convince Google to change its minds and back the proposal, that might carry some weight. (The fact that the ACCC has pursued other legal action against Google is beside the point in this context, we hope.)
(4) Use the Chewbacca defense. As any South Park fan will tell you, the Chewbacca defense involves deliberately confusing the jury with an insane Star Wars argument about Wookies and Ewoks, ending with the lines: "If Chewbacca lives on Endor, you must acquit!" At this stage, it has to be worth considering.
(5) Come up with a more convincing argument than "it will make the world safer". We don't actually expect to see this happening, but outside of option (1), it remains the only real chance of success for eBay. Good luck, guys. Break a leg.