@mjwl2006 wrote:
You are overlooking the fact that the ebay seller would not have access to the ebay buyer's email address without ebay's sales platform which has allowed and facilitated the sales transaction. It's not the seller's data to which you are referring: it is ebay's data. Sellers have no legal right use it, period. The buyer has not agreed to do business with the seller, the buyer has agreed to provide ebay with that information in order to facilitate purchases.
If I were you, I would postpone sending any more newsletters to the ebay buyer's email addresses you have culled from your Sales Records. in the short term, at least, until Raphael can speak to this.
I'm sorry, I had to smile at this second suggestion. I don't think Raphael is a lawyer, and I can imagine what his (and eBay's) position will always be on this: don't do it, or at very least a stern discouragement.
Of course eBay wants to protect what it sees as its exclusive purview from any incursions. However in this particular, narrow context they have no jurisdiction, even if they would never want to say so. Why would they? It would be completely against their interests to inform sellers of this possibility, or appear to condone it.
If they actually had such legal jurisdiction, they could also prohibit sellers from contacting their buyers by telephone, or for that matter inserting a private note in a parcel with promotional information. Control over either is not only a practical impossibility, but a legal nullity. The same applies to person-to-person email contact outside of eBay.
EBay doesn't own our buyers. Granted, they do -- quite rightly -- have control over how that data is used on their site. By transacting with a seller here, a buyer is, according to Canadian law, providing implied consent for the use of his or her email address. I doubt most buyers think they are not doing business with the seller they select to purchase from, but it really doesn't matter how the transaction is perceived. It is the fact that a transaction exists between the two which provides the opening under the law. In a dispute of this nature, a court would look at whether the underlying requirement of the law was satisfied (i.e. was there a transaction or not), and if that fact could be shown, the implied consent would follow. It's as simple as that, regardless of how eBay would like to see it.
However, I will say again that it's critical to appreciate that this permission provided by the statute is a privilege not to be abused without consequences, so a seller must be circumspect and courteous about its use. It's not a perpetually open door. And, as you've pointed out, over-use can backfire on the seller.
Once more, this is why I would stress that the very first approach include a means for the customer to opt out completely and that the seller respect the response.
You might recall Pierre Lebel and his massive customer email list he often mentioned. He understood the new law and its implications and how to properly use that list, which is the essential point.
