Findings, Recommendations and Conclusions

The complainant alleged that a BBBOnLine Privacy Program Participant, eBay Inc., violated its privacy policy by sending a marketing email to a registered eBay user who had requested to not receive such emails based on the user's chosen email preferences when registering for the website's online auction services. The complainant stated that when he had registered for eBay's online services he had opted to not receive any marketing email from them. The complainant further noted that he had registered for eBay's services based on an eBay privacy notice that has since been replaced (eBay's new privacy notice has been in effect since October 27, 1999). The complainant was concerned that the new privacy policy would affect or change his chosen email preferences.

eBay promptly responded to the complainant. eBay initially clarified that the email questioned by the complainant was not a marketing email but an administrative one that was sent to the complainant. eBay further stipulated that web-visitors who choose to sign up for their online auction services are advised via the privacy notice that administrative emails will be sent. Depending on the type of email in question, users may have the opportunity to choose which emails they would like to receive or not. In addition, eBay explained that this option is available irregardless of the privacy notice that was in effect the day the eBay user registered for its online services.

It is the opinion of the BBBOnLine Privacy Program Privacy Policy Review Service (PPRS) that eBay did not violate its privacy notice. The email sent was within the realm of what could be considered "administrative email." This opinion applies to both the new privacy notice (effective October 27, 1999) and the previous privacy notice.

With respect to the complainant's concern with the implementation of a new privacy policy, BBBOnLine reviewed both privacy policies in question. eBay's old privacy notice and new privacy notice (effective October 27, 1999) advise web-users that eBay reserves the right to send its users administrative notices but they do not clearly explain the possible content of such emails. Specifically, the old privacy notice stated that eBay: "...may also use personally identifiable information about you to deliver information to you that, in some cases, are targeted to your interests, such as targeted banners and promotions. You can receive such information by selecting the appropriate option on the preferences page. You can remove yourself from receiving such information by changing the appropriate option on the preferences pages.

We use your email address and, in rare situations your mailing address or phone number, to contact you regarding administrative notices from time to time."

The new privacy notice, effective October 27, currently states that eBay: "...may use your information to deliver information to you that, in some cases, are targeted to your interest, such as targeted banners, news services and promotions. By accepting the User Agreement you expressly agree to receive this information. You can remove yourself from receiving some of this information by changing the appropriate option on the preferences page.

We use your email address, your mailing address, and phone number to contact you regarding administrative notices, new product offerings, and communications relevant to your use of the Site. If you do not wish to receive these communications, you may have the ability to opt out on the preferences page."

To eliminate future misinterpretations of what is considered an administrative versus a marketing email, PPRS strongly recommends that eBay consider providing the web-user with a clear description of the potential content of administrative emails prior to a web-user registering for eBay's services. The description of administrative emails could be incorporated within the company's privacy notice or at the point of registration. Such clarification will enhance eBay users rights to make informed choices regarding their privacy preferences.

The remainder of this decision addresses the issue of making changes to an existing privacy notice. BBBOnLine guidelines do not prohibit one of its Privacy Seal participants from changing its privacy notice, however, the participant is required to advise BBBOnLine of all material changes to its privacy policies or practices, or of any other modification which could impact the participant's seal standing, prior to implementation. eBay followed the necessary procedures to comply with our guidelines by notifying BBBOnLine of the requested changes to the privacy notice. In addition, eBay provided its users with a 30-day notice, regarding the changes to its privacy policy, allowing subscribers the choice of whether to continue using eBay's services or not.

Company Statement:

"Thank you for illustrating to eBay your concern that our privacy policy may not be as clear as it could, regarding the types of email and the content of such email that is sent to our users. As you know, we are in the process of revising our Preferences page that will allow users to select from a wide variety of email and other types of contact from eBay. Our goal is to provide exactly what you have stated, a clearer way for users to understand the types of email and other contacts they receive from eBay. Additionally, we schedule revisions to our privacy policy twice a year to allow for suggestions such as this to be incorporated. As part of our continuing effort to make the User Agreement and Privacy Policy as clear as possible for our users, we will address your concerns in our next revision, in April 2000.

Thank you.
eBay Inc."