In July 2018, a cuneiform tablet was sold for $
99 on the auction-hosting platform, eBay [1
]. The seller was based in Netanya, Israel, and had been active on eBay since March 2017. What immediately stood out was the lot description, including the phrase: “I do not know if it’s real or not. Looks authentic–Without documents.” In comparison with the standard hyperbolic claims of eBay antiquities sellers, this eBay user’s statement was unique. Absent are the promises of authenticity, the appeals to expertise or any attempts to provide verifiable provenance. Further, the dealer provided the following item description for the tablet: “Still covered in sand.looked very old [sic]. You can see in the pictures.” Whilst the dealer offered the vague provenance of a London-based acquisition, accompanied with the testimony that all their items come “from a legal source”, the legality of this sale is questionable.
Since the Gulf War, political instability and ongoing conflict has created ideal conditions for widespread antiquities looting and smuggling in Iraq, resulting in the market for cuneiform objects increasing in volume at such a rapid size and rate that it could only be attributed to the introduction of recently looted material. In an investigation into the state of the antiquities market between 1990 and 2003, Neil Brodie concluded that this “new material could only have been moving out of Iraq through illegal means” [2
] (p. 119). An example of looting and trafficking in this context can be seen in the case of Hobby Lobby. The corporation has been the subject of federal investigation since 2011 when their shipment of approximately 3000 clay bullae and 450 cuneiform tablets was seized by United States (US) Customs agents in Memphis, Tennessee, whilst on route to Oklahoma City from Israel [3
]. These tablets, similar to the other 40,000 or so antiquities owned by Hobby Lobby, were intended for the Museum of the Bible, a giant new museum, which was funded by the Greens family and opened in Washington, D.C., in November 2017 [4
The illicit trade of cultural heritage is not a modern issue. Nor is it one that has evaded scholarly attention. For a long time now, we have been made aware of the legal, ethical and socio-political impacts stemming from the unlawful, or morally dubious, collection of objects of cultural significance—especially when these objects have originated from colonial contexts and conflict zones. Further, the relationship between antiquities crime and organised crime, including money laundering and terrorist financing, has been illustrated in a number of studies [6
]. For the past two decades, market participants have transitioned to e-commerce, taking advantage of both auction- and sales-hosting websites, such as eBay, Invaluable, Etsy and Live Auctioneers, as well as using their own websites to buy and sell antiquities [10
]. More recently, antiquities sales have been found to occur beyond traditional online marketplaces on social media platforms, including Facebook and Instagram [17
In 2006, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Council of Museums (ICOM), and the International Criminal Police Organization (INTERPOL) jointly published a set of preliminary guidelines in response to the burgeoning internet market for antiquities [18
]. Their recommendations are preceded by an acknowledgement of the “ongoing increase” of illicit trafficking of cultural objects facilitated by the internet. To counter these concerns, they invite member states and states with ICOM National Committees, inter alia, to strongly encourage internet sales platforms to post this disclaimer on all their cultural objects sales pages:
With regard to cultural objects proposed for sale, and before buying them, buyers are advised to: (i) check and request a verification of the licit provenance of the object including documents providing evidence of legal export (and possibly import) of the object likely to have been imported; (ii) request evidence of the seller’s legal title. In case of doubt, check primarily with the national authorities of the country of origin and INTERPOL, and possibly with UNESCO or ICOM.
Over a decade since the publication of these recommendations, the specific language of this disclaimer is nowhere to be seen in the businesses of internet dealers. This fact is highlighted by Neil Brodie in his policy brief for the Antiquities Coalition [19
] and is also supported by my own observations of the internet antiquities market. In his policy brief, Brodie is particularly concerned by the lack of self-regulation evident in the businesses of internet dealers, with a failure not only to enforce existing rules but to even present them to potential customers in the first place [19
] (p. 10).
2. Materials and Methods
The antiquities market exists within a complex legal framework: domestic and international jurisdiction; soft and hard law; and contemporary and historical crimes. For those operating in the market, cooperation and compliance with these laws and regulations are crucial to ensuring ethical conduct that does not support the illicit trade of antiquities. However, what do these obligations look like in reality? The questions that I seek to address in this paper are the following: How evident are legal obligations in the internet market for antiquities? How do internet dealers communicate their engagement with the complex international legal framework to their buyers? How does legal understanding, or lack thereof, translate to the standards of provenance in the internet antiquities market? Using data from the internet antiquities sales of 45 online dealers, in this paper, I will explore the relationship between legal awareness and ethical practice. The dealers come from three different categories of the internet market: dealers who operate primarily through their own websites; dealers who use the auction-hosting website eBay; and the recently emerging group of social media dealers.
This study is based off of four related hypotheses: firstly, internet dealers will have a higher engagement with the legal framework due to the likelihood that their businesses are more established, therefore accounting for greater experience with the market; secondly, eBay dealers will have the most diverse level of engagement compared with the other two groups of dealers, as both experienced and amateur dealers use eBay as a selling platform; thirdly, the lowest level of engagement will occur in the businesses of amateur dealers, most commonly manifested on eBay and social media platforms; and finally, a high engagement with the legal framework should correspond with antiquities sold with verifiable provenance. Low engagement should, therefore, be associated with poorly provenanced antiquities.
The data for this paper was collated over a six-month period, starting in late 2018. The dealers were identified using keyword searches that potential buyers of antiquities would use, e.g., “antiquities for sale”, “artefacts for sale” and “genuine artefacts”. A random sample of 15 dealers for each category was then selected based on their position on the search engine results page, being the first 15 dealers identified who claimed to be selling genuine antiquities or artefacts. Dealers selling objects they identified as replicas were excluded from the selection process. The only exception to this process was the inclusion of the aforementioned Israel-based eBay user, who was included due to prior knowledge of their operations. Given the vast number of sellers on the internet dealing in antiquities, it is worth noting that examining only 45 dealers is a limitation of this study. However, the aim of this study is not to record the legal engagement of the internet market of antiquities in its entirety but, rather, to identify common trends and practices of dealers across the different categories.
As expected, the dealers were primarily from the United States, the United Kingdom, and Europe. A few outliers were the Australian social media dealers, who were identified in the Facebook Marketplace—a selling forum that searches your immediate area unless you change your select location manually, which was done to identify dealers in the most traditionally important centres of trade for the antiquities market: London and New York. The dealers were separated into their categories based on how they were located in the online marketplace. Naturally, there is crossover between the categories, as some dealers use multiple selling platforms, and this will be demonstrated in the results. Apart from the location and the types of selling platforms they utilise, the dealers are presented anonymously in the results of this study. Whilst maintaining the anonymity of subjects is a “standard, widely accepted criminological method” [20
] (p. 210), it is necessary to acknowledge the ethical concerns inherent with reproducing names associated with online identities. Online social networks have long been recognised as vulnerable to identity theft, and this issue is further compounded by the rise in fake social media profiles, which often involve the creation of an online presence based on a real, nonconsenting person’s identity [21
]. It is necessary, then, when extracting research data from social media, and the internet more broadly, to protect identifying features of subjects (names, photos and other unique biographical information), and it is for these reasons that the dealers are de-identified in this study.
Internet dealers operate through their own, independent websites. They are dealers who have been in business for more than a decade and may also have traditional brick-and-mortar businesses. Sometimes they use eBay and social media to broaden their business prospects. They are also more likely to disclose personal information, including their full names, and testimonies to their market experience and expertise.
The second category of dealers comprises users of the auction- and sales-hosting platform eBay. Their experience and expertise are the most varied, with some dealers in operation since 2002 and others appearing as recently as 2017. Whilst some may have websites or social media profiles external to eBay to support their business, the majority restrict their operations to this selling platform and offer little information about their credentials or even identity. As users of eBay, they have to abide by the site’s terms and agreements, which does include policies on the trade of cultural heritage. However, the exact wording and, indeed, the visibility of these policies vary from country to country. For example, German eBay offers an explicit definition of an antiquity and requires any antiquities offered for sale to be accompanied with valid documentation of legal export from the country of origin. The United States, on the other hand, identifies an antiquity as an item of “cultural significance”, which is ideally presented for sale with an image of the necessary documentation. In his policy brief for the Antiquities Coalition, Brodie acknowledges these written rules as “broadly in line with the 2006 ICOM/INTERPOL/UNESCO recommendations” [19
] (p. 10).
The final group of dealers represents the growing trend of antiquities sales facilitated by social media, including Facebook and Instagram. Most of the dealers in this group only offer a few antiquities for sale at a given time compared with the other two types of dealers who may have as many as thousands of antiquities on offer. There are also key differences between Facebook and Instagram that must be acknowledged. Facebook is an American social networking platform that operates worldwide, with the exclusion of blocking countries. One of the services it provides to its 2.3 billion users is a buying and selling platform, known as the Facebook Marketplace, which enables e-commerce exchange. Antiquities sales do occur on the Marketplace, but there is ongoing research that demonstrates how illicit commerce takes place on Facebook via groups—public, closed or secret—with prices and locations of wares included on posts or discussed by market participants via direct messages [17
]. Instagram is a photo- and video-sharing social networking service, which is owned by Facebook, Inc. It does not have a designated buying and selling platform similar to the Facebook Marketplace. Instead, sales of antiquities involve a dealer posting images of available wares with a request for a direct message or a link to a supplementary sales page, usually hosted on eBay or the dealer’s own website. As is the case with eBay dealers, social media dealers are also obligated to follow the site’s terms and agreements, which dictate what can and cannot be sold. Currently, in Facebook’s commerce policies, which cover both the Facebook Marketplace and Instagram activity, there are no specific restrictions concerning the trade of cultural heritage as there are for the buying and selling of narcotics, alcohol, firearms and animals. There are, however, stipulations in their community standards, which prohibit the platform from being used to support criminal activity. Both eBay and Facebook utilise a user-reporting function to ensure that their commerce policies are followed.
In order to test the four hypotheses, the following criteria were considered when analysing the three groups of internet dealers: the first being legal awareness and the second being the quality of provenance. In the context of this study, legal awareness is identifiable through an engagement, or lack thereof, with the cultural heritage legal framework. It is an expression of legal literacy and thus exists on a continuum from legally trained actors, such as lawyers and judges, to non-legally trained actors. This understanding of legal awareness comes from the work of legal scholar James Boyd White, who framed legal literacy as “that degree of competence in legal discourse required for meaningful and active life in our increasingly legalistic and litigious culture” [22
] (p. 144).
In the context of this study, a demonstration of legal awareness could include engagement with any part of the cultural heritage legal framework, consisting of international law—including two key conventions and bilateral agreements, also known as memoranda of understanding (MoUs)—and domestic exportation laws, which restrict the trade of antiquities. The two international conventions relevant to this study are the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects. They are compatible and complementary documents, which provide an international framework for regulating the trade of cultural heritage, including preventative measures and restitution provisions and fostering international cooperation between the source and market countries [23
]. These international agreements are then implemented at the domestic level through national legislation. When engaging in the market, antiquities collectors and dealers operate within this international legal framework; however, they are also subject to national exportation laws and bilateral agreements made between the source and market countries.
However, a demonstration of legal awareness can also be as rudimentary as the claim made by the seller of the cuneiform tablet: “All my items come from a legal source.” Whilst this is not information that could be used to determine whether the operations of this eBay user abide by the relevant cultural heritage laws and regulations, it is still an indication of the dealer’s awareness of their legal obligations in the context of this study.
In terms of provenance, this was not a study that aimed to identify every time a dealer did or did not engage with provenance but, rather, an attempt to encapsulate the types of provenance narratives used. Provenance is a market mechanism that directly engages with the ethics of antiquities acquisitions as it acts as both a testimony to the origins of an object as well as a record of prior ownership history. When examining the dataset, the quality of provenance narratives was considered on a scale of high to low quality. Antiquities that offered high-quality provenance were presented by the dealers with information that could serve as legal testimony for the object in a contemporary legal context. Such information includes an object’s provenience—“the physical location of an artifact in four-dimensional space”, which is “empirical and absolute” [26
] (p. 212)—or records of a legal export from the source country to its destination. On the other end of the spectrum, low-quality provenance was regarded as incomplete or insufficient provenance information. This could include a complete lack of provenance, which is common, or the use of industry clichés, such as “the property of the gentleman” or “found in the family attic”. Average-quality provenance encompassed the types of provenance that fall in between these two extremes: details of ownership history that omit provenience and instead focus on the experience and expertise of the collectors and dealers who have handled the object.
These results from this analysis of 45 internet antiquities dealers must now be considered against the four hypotheses. Starting with the first hypothesis, internet dealers did indeed demonstrate the highest level of engagement with the legal framework when compared with the eBay and social media dealers. Further, awareness of their legal obligations was demonstrated by these dealers in a number of ways, including references to specific international treaties, bilateral agreements, and export laws and restrictions. However, the positivity of these results is somewhat undermined by the examples of dealers attempting to neutralise and deflect their legal obligations. The impact of the use of these neutralisation techniques, and in particular, the dissemination of the collector-as-saviour narrative, cannot be understated in the context of the internet market for antiquities. Such narratives and beliefs are incongruous with the reality of the modern antiquities market, shaped by systematic looting, trafficking and other criminal acts.
Moving now to the second hypothesis, the eBay dealers demonstrated a much lower level of engagement with the legal framework than expected. Admittedly, these results could have been caused the limited sample size. A larger sample size would likely better correspond with this statement and show the expected level of variation and diversity. That being said, 10 of the 15 dealers had been active on eBay for more than five years, suggesting they had at least some experience with the market.
The third hypothesis was found to be accurate and the level of engagement with the legal framework was fairly consistent across the eBay and social media dealers. With only five dealers across these two categories demonstrating legal awareness, it is safe to say that engagement with the complex cultural heritage legal framework is generally poorer than what can be observed in the businesses of more established internet antiquities dealers. Further, not only were there few dealers engaging with the legal framework, but the ways in which the eBay and social media dealers did demonstrate legal awareness were quite limited.
Finally, a high engagement with the legal framework did not always translate to a demonstration of ethical behaviours and practices. The dealer who cited MoUs and international heritage conventions at length did not necessarily provide examples of antiquities with higher provenance. These results challenge us to think of legal obligations in a different way—not as a tool that operates as checks and balances of behaviour but, rather, as an act of branding, a performance of values and ethics to support the dealer’s reputation in the market. Low engagement, however, did more frequently correspond with poorly provenanced antiquities. This was especially the case with the social media dealers, who offered the highest number of antiquities with withheld provenance and the lowest engagement with the legal framework overall.
In his policy brief for the Antiquities Coalition, Neil Brodie argued that in the internet market for antiquities self-regulation appears to be largely non-existent [9
]. The results of this study clearly support this argument: whilst the legal framework of the trade of cultural heritage was engaged with by some dealers of the internet market for antiquities, the level of legal literacy was depicted as being quite poor. Whether this is the reality is another question altogether, as it is entirely possible that some dealers know more about their legal obligations than they express on their websites, eBay profiles and social media pages. What is clear, however, is that even when dealers do demonstrate a strong engagement with the legal framework, this does not necessarily correspond with ethical dealer practices and behaviours.
Historically, the standards for provenance in the antiquities trade are very low and have resulted in a global market where the “licit” cannot easily be separated from the “illicit”. The realities of this practice have placed heightened pressure on dealers and collectors to perform due diligence and ensure that the antiquities that they have acquired have not come to their possession through illegal means. However, in the case of these internet dealers, high engagement with a legal framework is often undermined by the sale of poorly provenanced antiquities. This widespread and normalised practice is a dangerous one as it reinforces unethical market values. Further harm appears in the use of neutralisation techniques by some internet antiquities dealers. Whilst not common within this dataset, this practice is still concerning as these narratives are used to reinforce unethical, and even criminal, practices and behaviours that have long obstructed attempts to regulate the illicit trade of antiquities. The popular collector-as-saviour narrative is particularly harmful, if we consider the presence of new collectors who have only accessed the antiquities market via the internet.
However, it is these new market participants who provide an ideal audience for educational campaigns targeted at raising consumer awareness by challenging these misleading narratives and highlighting the ethical issues involved with the trade of cultural heritage. Whilst this undertaking must involve the efforts of academics, NGOs, cultural heritage professionals, policing agencies and the dealers themselves, the role of the sales-hosting platforms, such as eBay, Facebook and Instagram, cannot be ignored either. Of course, raising consumer awareness can only do so much in regulating the internet market for antiquities. This approach must be supported by the development and implementation of systematic regulation and monitoring policies—ones which allow for successful criminal prosecutions when internet dealers do trade in illicit antiquities. Education has crucial a role to play, however, in changing the ethics of the market, and improving legal awareness is just one part of a much larger and more complicated undertaking.