Selective liability, regulated digital commerce, and the subversion of product trading bans: the case of elephant ivory

ABSTRACT

This paper outlines and applies the concept of “selective liability” (i.e., operating as if there was a genuine choice between fault-based and strict liability legal regimes) to examine the apparent plausible deniability pact between online selling platforms and the sellers. Through an analysis of online trading data, this paper considered the issues inherent in prosecuting traders who use online auction platforms to sell ivory in contravention of “CITES” regulations. Three bone euphemisms for ivory (antique bovine bone, antique cow bone, antique Chinese cow bone) were identified to track sales over the course of 90 days. The results showed that sellers are using such euphemisms to sell ivory online and these findings highlighted the contradiction between a firm’s ban on ivory sales and the apparent ease with which ivory is sold through a website.

KEYWORDS:

• Selective liability
• strict liability
• elephants
• conservation
• online illegal ivory trade
• online auction sites
• CITES

Conflicts of Interest

The work complies with ethical standards having passed through the formal ethical review process of the University of Portsmouth.

Notes

1. 16 USCS § 4244 (Title 16, Conservation; Chapter 62, African Elephant Conservation; Miscellaneous), the term “worked ivory” means “any African elephant tusk, and any piece thereof, which is not raw ivory.”

2. Although the Ivory Act of 2018 passed into law on December 20, 2018 it has not, as yet, been enacted.

3. The five derogations set out in the Ivory Act 2018 are, de minimus items with less than 10% ivory by volume and made prior to 1947, musical instruments with less than 20% ivory and have been made prior to 1975, portrait miniatures made prior to 1918, sales to and between accredited museums and items of outstanding artistic, cultural or historic significance made prior to 1918.