This document discusses product liability in the age of the Internet of Things. It outlines the different bases for product liability, including negligence, contractual liability, and statutory strict liability under the Product Liability Directive. The directive defines producers broadly as manufacturers, sellers under their own name, resellers, and importers. Products must be safe for their reasonably expected use at the time of circulation. Producers may be liable for defects for up to 10 years. While software is not explicitly included, the purpose of consumer protection suggests it could apply. Producers can mitigate liability risks through safe product development processes, quality assurance, instructions, audits, and defined responsibilities. Defenses include assumption of risk, misuse, and statutes of

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
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3. What is new
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4. Who will pay the price of insecurity?
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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)
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6. Product Liability Directive (EU)

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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)
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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
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10. Significanse of information
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Expecations if….
DangerousHarmless
… poorly informed
… well informed

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12. 4/29/2019 12

13. Does PLD apply to software?
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14. Considerations
Pro
• Purpose – consumer
protection, avoid
circumvention
• Simplified enforcement -
mixed causes
• Contemprorary application –
SW irrelevant 1985 (but not
excluded)
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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?
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16. What if newer standards arrive?
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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
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18. Liable for any small damage?
• 500 Euro threshold
• Class action
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19. Data protection and IoT

20. Regulatory
• GDPR
– Information security
• e-Privacy Regulation
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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
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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
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5. Distant casual connection
6. Statues of limitation
7. Disclaimers
8. Limitation of liabiliy
9. - and more!

24. Thanks!
kf@bull.no