Ireland: New And Emerging Technologies: Challenging Existing Product Liability Rules

Last Updated: 7 August 2018
Article by Isabel Foley and Domhnall Breatnach
Most Read Contributor in Ireland, November 2018

New and emerging technologies – such as autonomous, self-learning and artificially intelligent products, advanced robotics and the Internet of Things – are an increasing feature across a variety of sectors, including transport, healthcare, agriculture, IT, data management and communications. Such technologies offer a range of societal and economic benefits, from prevention of human error and failure, and improved safety, to increased productivity and economic growth. Although the existing EU and Irish product liability rules, which have been in place for many decades, have proven themselves reasonably flexible in adapting to the legal challenges faced by technological advancements in the preand early-digital age, new and emerging technologies present novel and more complex legal challenges. These new and emerging technologies raise a series of fundamental questions. Who is, and who should be, liable when they cause harm? Can the existing product liability rules be suitably adapted to accommodate these technologies and, if so, how?

The Liability for Defective Products Act 1991 (LDPA) implemented EU Directive 85/374/EEC on liability for defective products (the Product Liability Directive) into Irish law. The Product Liability Directive was adopted in 1985 – the same year the first .com Internet domain name (symbolics.com) was registered and Microsoft's Windows operating system was first released. Technologies have evolved dramatically since. In 1985, European lawmakers were clear in the view (as recorded in the recitals to the Product Liability Directive) that "liability without fault on the part of the producer is the sole means of adequately solving the problem, peculiar to our age of increasing technicality, of a fair apportionment of the risks inherent in modern technological production." This core principle of no-fault producer liability was expressed in simple terms in article 1 of the Product Liability Directive: "The producer shall be liable for damage caused by a defect in his product."

The product liability regime laid down by the Product Liability Directive may represent a reasonable and fair apportionment of risks in the context of traditional products, where producers exercise largely complete control over the design and manufacture of their products and can readily assess and foresee their risks. However, by comparison, new and emerging technologies present an array of additional challenges and risks for producers, which necessitate a reassessment of the existing liability regime. For example, in the case of autonomous, self-learning and artificially intelligent products, the level of input that the product may require from a user, and the amount of control that a user may have over the product, can vary dramatically – from low or partially automated products to high or fully automated ones. Such varying levels of automation complicate matters. A problem with a product could conceivably arise as a result of: a defect in a hardware or software component; a deliberate choice of the autonomous product; interaction between the user and the product; a self-learned choice based on prior user patterns or behaviours or other extrinsic factors; or receipt of incorrect data or information from an external network outside both the manufacturer's and the user's control. Who should bear responsibility in such circumstances?

Whether existing liability rules can be adequately adapted, or, indeed, a single set of effective rules can be designed, to cover the ever-expanding array of new and emerging technologies remains to be seen. These technologies raise questions about all of the core legal components of the existing product liability regime, including what we understand as a "product" and a "defect". Under the Product Liability Directive, and the LDPA, a "product" is defined in terms of "movables". Although few difficulties arise in understanding this in the context of traditional products, the position is not so clear when it comes to new and emerging technologies. Some new and emerging products are, in fact, complex integrated and interconnected systems, comprised of not only various hardware components, but also software elements (embedded and non-embedded), which, in turn, may rely on critical data inputs from a variety of networks. Is the "product", in reality, multiple products? Should the producer of each component be equally liable for any damage caused by the product as a whole?

Further questions arise when considering what is meant by a "defect". Under the Product Liability Directive and the LPDA, a product is currently considered defective if it fails to provide the safety which a person is entitled to expect, taking all circumstances into account – including the presentation of the product, the use to which it could reasonably be expected that the product would be put, and the time when the product was put into circulation. However, in the case of new and emerging technologies, what level of safety should a person be entitled to expect, for example, from an autonomous, self-learning or artificially intelligent product, where the product's ultimate performance may be dependent on learning based on user input, prior usage or behaviour patterns, or extrinsic factors or data sources?

The legal challenges posed by new and emerging technologies are not just limited to the statutory defective products liability regime. They also arise in the context of common law contract and tort principles. Under the general common law principle of duty of care that applies in Ireland, a product manufacturer owes a duty of care to all those who may be foreseeably injured or damaged by their products. Although these principles of negligence established in the seminal case of Donoghue v Stephenson have stood the test of time, and have proven themselves flexible enough to apply not just to the dead snail in Mrs Donoghue's bottle of ginger beer, but to much more sophisticated products that have followed, it remains to be seen whether or not the principles can be adequately adapted for new and emerging technologies. As to the issues of foreseeability and causation, to what extent can the manufacturer of an autonomous, self-learning or artificially intelligent product reasonably foresee every way in which the product might ultimately function? What is, or should be, the appropriate standard of care in the context of such technologies? If a system or product reaches an appropriate standard of performance and safety during manufacturer testing, will that constitute reasonable care on the part of the manufacturer?

In Ireland, under the Sale of Goods Act 1893, as amended by the Sale of Goods and Supply of Services Act 1980, there is also an implied condition that goods are of "merchantable quality", requiring a product to be fit for the purpose or purposes for which a product of that kind is commonly bought, and to be as durable as it is reasonable to expect having regard to any description applied to it, the price (if relevant) and all other relevant circumstances. In addition there are criminal sanctions for producers who place a product that is not a "safe product" on the market pursuant to the European Communities (General Product Safety) Regulations 2004 (GPSR), which implement Directive 2001/95/ EC on general product safety (which is eventually to be repealed once the EU proposal on consumer product safety is finalised and comes into force). Under the GPSR, a "safe product" is defined as a product that, under normal or reasonably foreseeable conditions of use (including duration, and, where applicable, putting into service, installation and maintenance requirements) does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons. Again, autonomous, self-learning and artificially intelligent products will undoubtedly present challenges when it comes to assessing if the product is fit for purpose or what the product's "normal and reasonably foreseeable conditions of use" are.

The EU Commission is currently evaluating whether the Product Liability Directive is fit for purpose, particularly in the context of new and emerging technologies. The evaluation is to assess the Directive according to five criteria:

  • Effectiveness: have the objectives been met?
  • Efficiency: were the costs involved reasonable?
  • Coherence: does the Directive complement other actions or are there contradictions?
  • Relevance: is EU action still necessary?
  • EU-added value: did the Directive provide clear added value or could similar changes have been achieved at national level?

As part of the evaluation, the Commission launched a public consultation in 2017 to collect stakeholders' feedback on the application and performance of the Directive, including in relation to the challenges raised by new and emerging technologies. The EU Commission's Directorates-General for Internal Market, Industry, Entrepreneurship and SMEs; Justice and Consumers; and Communications, Networks, Content and Technology are also in the process forming an expert group to consider the issues of product liability and new technologies. The group will operate in two different groupings: a Product Liability Directive grouping and a new technologies grouping.

The Product Liability Directive grouping will consist of members appointed in a personal capacity and to represent common interests, together with members from EU-level umbrella organisations – including industry associations and federations (manufacturers, original equipment manufacturers, suppliers, retailers and repair and maintenance providers); non-governmental and consumer organisations; and academia and other research organisations and institutions – as well as from EU member-state authorities and other public entities. It will provide advice and expertise to the Commission on the Product Liability Directive and draw up guidance in relation to its implementation. The expert grouping will also be tasked with assessing the extent to which the provisions of the Product Liability Directive are adequate to solve questions of liability in the context of new and emerging technologies in light of the jurisprudence of the Court of Justice of the EU and national courts.

The new technologies grouping will assess whether and to what extent existing liability schemes can be adapted to deal with new and emerging technologies. It will also consider the issue of assignment of liability, the nature of liability (fault or non-fault based), whether it is necessary for the injured party to establish a defect, who should bear the burden of proof, and what redress possibilities insurance providers should have to recover compensated damage. The grouping will assess shortcomings in the existing liability regime and whether it is adequate to facilitate the uptake of new and emerging technologies. If not, the grouping will provide recommendations on how the existing regime should be adapted. Issues of national tort law, and any other specific national liability regimes that may be relevant, will be considered by the grouping, and questions of liability will be analysed from the perspectives of various players. The new technologies grouping will also assist the Commission with developing EU-wide principles as regards new and emerging technologies. The group's work is be completed by June 2019.

It ultimately remains to be seen how EU policy and lawmakers (and, in the meantime, national lawmakers and the courts) will confront the many legal challenges that new and emerging technologies present, and how the issues of producer responsibility and liability will be balanced against product safety and consumer protection concerns. Such concerns are at the heart of the current product liability regime, and will undoubtedly remain so under any new or adapted one. It is important that, in seeking to apportion the risks, any new or adapted product liability regime strikes a fair balance between those competing concerns, so that the development and evolution of new and emerging technologies is not unduly impeded.

Originally published in Who's Who Legal: Product Liability Defence 2018.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions