"I don't feel they have the right to do it," said a very upset eBay seller Tuesday.

She was referring to eBay's policy of sending competitor links to bidders on her auctions, known as the "Recommended Email" policy. After an auction ends, eBay sends out emails to the bidders who lost the auction. The email contains links to "similar items," including those from competing sellers. She thought she had opted-out so eBay would not send emails to her underbidders, but she discovered there is no way to opt-out of the policy.

When eBay launched the policy almost 3 years ago, it generated a storm of protest, including a protest auction by a top powerseller (http://www.auctionbytes.com/cab/abn/y01/m06/i18/s01) and a 1960's-style protest (http://www.auctionbytes.com/cab/abn/y01/m06/i22/s03).

The controversy goes right to the heart of whether eBay has the right to send bidders to a competing seller, given their "venue only" status. eBay has used the venue-status argument in legal wranglings to prove they are not liable for transactions between buyers and sellers on its site. Sellers who protest the Recommended Email policy believe eBay has no right to tell their bidders about similar items listed by competing sellers: if an eBay transaction is between seller and bidder, how does eBay have the right to send emails to those bidders pointing them to a seller's competitor?

eBay says the email is "designed to increase overall bidding on eBay and to increase the number of bids you receive as a seller." Our unhappy seller, who did not wish her name to be used, doesn't buy it. "I have a very good sell rate, I don't need referrals. I put a lot of work and time into my auctions, and I list in gallery. Why should another seller benefit?" She spends 35 cents to list an item and another 25 cents on the gallery feature. Yet sellers who don't spend extra money on gallery may benefit from the Recommended Email links that go to her bidders.

And despite the fact that eBay says on the site, "we send this email 24 to 36 hours after your item ends," we saw an email that was sent a mere 10 hours after the auction ending time. As the unhappy seller points out, this does not give her a chance to send out "Second Chance Offers" to underbidders should the winning bidder back out.

What made the seller most upset, however, was that she thought she had opted out of the Recommended Emails eight months ago when she changed her preferences to No under "End of Item Notices for Unsuccessful Bidders" on her "My eBay" page. A discussion with an eBay customer support rep left her confused and angry that perhaps on eBay, no does not mean no.

The rep told her that by checking the "No" box, links to her auctions would not be included in Recommended Emails that go out. It does not mean that her bidders would stop receiving the emails. Opting out of the policy gave her competitors an even greater edge.

Turns out the customer support rep is correct. AuctionBytes asked eBay spokesperson Hani Durzy, "If a seller opts out in preferences in My eBay, does that mean eBay will not send these emails to underbidders?"

"No," Durzy replied. "The seller cannot impact whether other eBay members receive certain emails. If sellers opt out of participation in these emails, it means that the seller's unsuccessful bidders will not get links to the seller's similar items in that email, nor will links from that seller's items appear in any other follow up emails."

The policy is confusing at best. The description of the "End of Item Notices for Unsuccessful Bidders," right above the box where sellers can opt out, reads in part: "If you opt out, bidders who bid on your auctions will not receive links to similar items, nor will they receive links to your other auctions."

Back in 2001, eBay faced enormous pressure from users to either stop sending the emails or make it an optional feature. By announcing it would become "optional," and with the contradictory wording on the opt-out page, they may have unintentionally misled many sellers about what optional really means.