What if Lewis becomes distracted by the immersive environment in his headset (or what if his view of the real world is obscured by the content in the immersive environment) and he walks into that rather large pothole? If he is injured, could the manufacturer of the headset or developer of the content in the immersive environment be liable?
What about if Lewis accidentally damages one of the cars as a result of an issue with the headset or the content? Would liability rest with the manufacturer or the developer of the content?
The first point to note is that, under UK law, product safety is
a serious issue and is covered by a number of laws (both statutory
and common):
The Consumer Protection Act 1987 imposes strict
liability (meaning there is no need to prove fault) for damage
caused by a defective product. Consumers are able to claim against
the original producer of the product, the entity which has branded
(or "held himself out to be the producer of") the
product, or the importer of the product. This is all well and good
when we're talking about tangible products (such as a spatial
computing technology headset). However, it's important to
remember that, infamously, the CPA is unclear about the
relationship between its provisions and digital content - the CPA
does not expressly mention digital content and is, therefore,
generally taken not to apply to such content; however, where
digital content is supplied as part of a tangible object (such as a
headset), it is unclear whether this would fall within the scope of
the CPA.
According to the CPA, a product will be classed as
"defective" if "the safety of the product is not
such as persons generally are entitled to expect; and for those
purposes "safety", in relation to a product, shall
include safety with respect to products comprised in that product
and safety in the context of risks of damage to property, as well
as in the context of risks of death or personal injury"
(section 3, CPA 1987). For the purposes of determining
whether a product is defective, certain factors (such as "the
manner in which, and purposes for which, the product has been
marketed" (including its get-up, the use of any mark in
relation to the product and any instructions for, or warnings with
respect to, doing or refraining from doing anything with or in
relation to the product) and "what might reasonably be
expected to be done with or in relation to the product") will
be considered.
The General Product Safety Regulations 2005
require products to be safe before they are placed on the market.
For the purposes of the Regulations, a "safe product" is
defined as "a product which, 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" (regulation 2, GPSR 2005),
subject to various factors (such as the characteristics of the
product, any warnings for the product, the category of consumers at
risk when using the product, etc).
The manufacturer of a product may also be liable in
tort if it can be proved that they have been
negligent. To succeed, a claimant must prove that:
- the manufacturer owed them a duty of care;
- the manufacturer breached that duty of care;
- the breach caused damage to the claimant; and
- the manufacturer could have reasonably foreseen the damage.
It's important to remember that negligence claims can be
difficult to prove given that a chain of causation must be
established.
Based on the patchwork of laws set out above, it's clear that
manufacturers of headsets and creators of content within the
immersive worlds displayed on those headsets could be liable if
their products are deemed to be unsafe and cause harm as a result.
The extent of such liability will obviously be context-specific
– for example, if Lewis is distracted by content while
wearing a headset and walks into a pothole, it feels unlikely that
the manufacturer of that headset could be found liable for any
injury suffered by Lewis (assuming that the headset itself was
otherwise functioning correctly and displayed suitable warnings,
etc). However, faulty headsets or inaccurate content could result
in complex liability claims which will, no doubt, become
additionally complex as manufacturers and content creators
inevitably attempt to disclaim liability to the fullest extent
possible in their terms and conditions.
It's also worth bearing in mind that it's not just
physical injury of which Lewis would need to be mindful when using
spatial computing technology. In recent years, the UK government
has highlighted the importance of cyber security, online safety,
and content regulation with the introduction of the Online
Safety Act 2023 and the Product Security and
Telecommunications Infrastructure 2022. In simplistic
terms, the latter applies to "smart" products and
introduces additional security requirements for such products; the
former aims to protect users of online services from accessing
harmful or illegal content.
Finally, it's also important to remember that we've based
our case study on Lewis simply using a headset for fun and tripping
into a fictional pothole. However, the use cases for this
technology continue to expand – from glasses which show
real-time subtitles to deaf people, to headsets which train
employees to identify problems with, and fix, complex machinery, to
integrations between headsets and autonomous vehicles – so
too will the gravity of any harm resulting from problems with
spatial computing technology.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
