Its review focuses on Part 1 of the Consumer Protection Act 1987, which preceded the arrival of smartphones, apps, social media and AI.
Proposals, published last week, include expanding the definition of ‘product’ to include non-physical items such as software, AI systems, design components and features of social media and other online platforms. Liability would be extended to cover online platforms and to clarify the rules regarding compensation for psychiatric illness caused by defective products—seen as important as emerging technologies create new risks of psychiatric injury. The proposals address claims both by people directly harmed and those who develop psychiatric illness after witnessing harm to, or the death of, a loved one.
The Law Commission also aims to simplify the law on what counts as a defective product and make it easier for claimants where it is exceptionally difficult to find evidence or provide proof. In this situation, a presumption of defectiveness would apply. Defendants could seek to rebut the presumption or accept it, in which case the court would award partial compensation under a risk-sharing mechanism.
Existing defences for businesses would be retained and adapted to the digital age, including the ‘development risks’ defence where a producer is not liable for a defect that could not have been discovered when the product was supplied.
Law Commissioner Professor Solène Rowan said: ‘As technology evolves, the law must evolve with it.
‘Our proposals are designed to ensure that people harmed by defective products can obtain compensation, while providing greater clarity and certainty for businesses developing the products and technologies of the future.’
The consultation, Product liability, closes on 14 January, and can be found here.
