1.
A new dawn of product liability in the age
of Internet of things
IT IP Law Groupe Europe, Moscow, 25 April 2019

2.
How things were
4/29/2019 2

3.
What is new
4/29/2019 3

4.
Who will pay the price of insecurity?
4/29/2019 4

5.
Four basis for product liability
1. Culpa (negligence)
2. Contractual liability
3. Non-statutory strict liability
4. Statutory strict liability (Product Liability Act/Directive)
4/29/2019 5

6.
Product Liability Directive (EU)

7.
4/29/2019 7
Insecurity as a defect

8.
Who may become liable under PLD?
The producer.
Wide definition in Product Liability Directive:
a) the manufacturer (finished product or part),
b) those offering a product for sale under its own name,
c) reseller, if the manufacturer is hard to identify, and
d) the importer.
(PLD art. 3)
4/29/2019 8

9.
How safe must a zipline be?
«entitled to expect»
• Who?
• Presentation – information
• Type of use – «reasonable expected»
• Time put into circulation
• Type of product
4/29/2019 9

10.
Significanse of information
4/29/2019 10
Expecations if….
DangerousHarmless
… poorly informed
… well informed

11.
4/29/2019 11

12.
4/29/2019 12

13.
Does PLD apply to software?
4/29/2019 13

14.
Considerations
Pro
• Purpose – consumer
protection, avoid
circumvention
• Simplified enforcement -
mixed causes
• Contemprorary application –
SW irrelevant 1985 (but not
excluded)
4/29/2019 14
Contra
• Wording PL directive:
“all movables, with the
exception of primary
agricultural products,[…]”
• Foreseeability for producer
• Other basis liability
available

15.
When must the product be safe?
• At time products put into “circulation”
= time of sales
• What if SW is installed after sold?
4/29/2019 15

16.
What if newer standards arrive?
4/29/2019 16

17.
Liable for how long?
Liability ends at first of:
a) three years after claimant “should reasonably have become
aware, of the damage, the defect and the identity of the
producer.”
b) 10 years after the product was put into circulation
4/29/2019 17

18.
Liable for any small damage?
• 500 Euro threshold
• Class action
4/29/2019 18

19.
Data protection and IoT

20.
Regulatory
• GDPR
– Information security
• e-Privacy Regulation
4/29/2019 20
Non-regulatory
• Contractual liability
• Culpa

21.
How to avoid liability?

22.
Measures
1. Make your offering safe
use and document safe product
development processes
rigorous quality and safety testing
and management
4/29/2019 22
2. Clear placement of
responsibilities within
own organization
3. Have required policies
4. Third party audits
5. Instructions/warnings

23.
Defences
1. Contributing fault
2. Assumption of risk
3. Misuse of product
4. State-of-the-art
4/29/2019 23
5. Distant casual connection
6. Statues of limitation
7. Disclaimers
8. Limitation of liabiliy
9. - and more!

24.
Thanks!
kf@bull.no