If you hoped that since Brexit you could forget about keeping one eye on the decisions of the CJEU, think again. Yesterday in Krone Verlag GmbH (Case 65/20) [2021] EUECJ C-65-20, that court decided an important issue of product liability under the Product Liability Directive, an EU measure that remains essentially in effect here having been enacted as Part I of the Consumer Protection Act 1987.
An Austrian redtop newspaper reader followed the advice contained in an article it ran on home doctoring, and applied a poultice of grated horseradish for several hours to a swollen ankle. She suffered a serious toxic skin reaction because such remedies ought to be applied for only a few minutes. In an unfortunate typo the paper had substituted hours for minutes.
She sued the proprietors, alleging that the newspaper was a defective product under the Directive and that they were therefore strictly liable to her for the consequences of the material contained in it. The owners argued that defective products meant only physically defective products, and did not cover informational defects. Case law in Austria being divided on the point, the Oberster Gerichtshof (ie the Austrian Supreme Court) referred the matter to Luxembourg.
The Euro-court briskly sided with the newspaper proprietors. A bright Euro-line had to be drawn between liability for defective things (strict) and for bad services (fault-based): and a thing did not become defective merely because it happened to be the medium for misleading advice or intellectual content apt to cause harm or injury.
Good news, certainly, for publishers: not only of newspapers, but (more importantly in the commercial context) of instruction books and manuals for maintenance or assembly. These people are it seems now insulated — at least as a matter of our law — from strict liability claims by workers complaining of injury due to incomplete or misleading materials contained in them; they are also safe from strict liability contribution claims by the insurers of employers and others who have been successfully sued by workers and now seek to pass on part of the liability. Equally, in the rare case where mariners rely on a misleading paper chart with untoward results, there can be no question now of liability in the cartographers for injuries resulting.
This judgment was about paper media: but presumably it applies to material on machine-readable media too. It can hardly make a difference whether information is supplied printed on paper or written on to a DVD or USB stick. So there can now be no strict liability suit for instructions supplied on a DVD, or if a DVD fitted into, say, an ECDIS display has a bug in it that causes the display to be wrong. (If material is supplied over the Net no question arises anyway, since then there is no physical medium at all).
A little more difficult is the position of software for operating machines, where there is no element of intellectual content readable by humans: the DVD, for example, that you insert into a device (such as the control unit of a drone submersible) to cause it to run or to transfer necessary operating information to it. If this is misconfigured and causes the device to malfunction and cause injury, is this a defective good? The matter is not absolutely clear. But the stress laid by the Court on the difference between goods and services suggests that here too liability under the Product Liability Directive should be denied. Bad instructions directed at a machine seem more a matter of a defective service than a defect in anything physical: physicality here is confined to the medium on which the instructions happen to be written.
In terms of strict law this decision is not in any way binding on a court in the UK applying the Consumer Protection Act. In practice, however, Brexit or no Brexit, it’s difficult to see the courts here coming to a different conclusion. Particularly since, at least to us at the IISTL, the result reached in Luxembourg seems so overwhelmingly sensible.
