Disruptive Technology - 3D Printing and Product Liability

Jane Halkerson reviews the law that protects consumers using 3D printing and wonders whether bespoke regulation is needed

Introduction

The World Economic Forum has identified 3D printing (3DP) as a disruptive technology that will mature in six to ten years, once advances in speed and material capabilities have been made.[1]

3DP can be used:

  • ·       for mass production in factories - for example, The Economist has reported on the use of the ‘digital light synthesis’ 3DP method in a new generation of Adidas trainers;[2]
  • ·       to create domestic items for use in the home using a desktop 3D printer - applying heated plastic filament layer by layer to create a physical object.

From a consumer protection perspective, use of 3DP or ‘additive manufacturing’ in factories does not raise novel legal issues – an established manufacturer and/or brand owner manufactures and sells a product to a consumer in physical form and has the legal duty to check that it is safe. Rather, the challenging product liability issues lie in the use of 3DP in the home. The technology disrupts the business model upon which most product liability rules rely because it does not require the participation of a traditional manufacturer and the goods in question are physically created by the consumer at home.

Domestic 3DP

Desktop 3D printers are available at relatively low cost and that cost is decreasing. Platform providers create online marketplaces for ‘CAD’ files (digital designs) that may be designed by anyone and downloaded by anyone. They may be downloaded for free and printed at home. The designs available include a range of domestic items such as kitchen gadgets, toys and spare parts – items that have the potential to cause injury in the same way as their offline counterparts. Digital designs frequently carry no information for assembly and safe use save for directions about printer settings and material.

Use of 3DP in the home environment calls for an examination of:

1.     whether there would be sufficient legal protection for a consumer should a faulty printed product cause death, personal injury or property damage; and

2.      whether and to what extent consumers of digital designs for 3D print should be protected by product safety laws.

Consumer protection laws

Consumer protection in the UK with regard to offline product safety relies on the availability of remedies for breach of consumer rights and penalties to deter such breach. Some rules bolster the position of the consumer by placing traditional burdens of proof on the manufacturer of a product and other rules assist the consumer by implying warranties:

  • ·       the Consumer Rights Act 2015 implies terms as to satisfactory quality and fitness for purpose into certain consumer contracts
  • ·       the Consumer Protection Act 1987, part I imposes liability where damage is caused by defective products as long as it is proved that the product was defective and caused damage (death or personal injury or damage to property)
  • ·       the General Product Safety Regulations 2005 and, similarly, industry-specific regulations such as the Toy (Safety) Regulations 2011 set out offences for the supply of products that do not conform with certain safety requirements - they act as a deterrent to unsafe products being placed on the market.

Application

The general point to note is that in domestic 3DP the above consumer protection laws  are unlikely to assist the consumer of a digital design because those rules depend on one or more of the following in order to operate as intended:

  1. (1) a physical product;
  2. (2)  a sale/supply in the course of business; and/or
  3. (3) the presence of a traditional manufacturer, mass production and physical distribution.

These are unlikely to be present in domestic 3DP scenarios.

(1) Physical product 

The Consumer Protection Act applies to the supply of ‘goods’, which are defined in s 45 as physical ‘things’ rather than information or digital items. Further, digital designs may not come within its definition of ‘goods’ given that ‘goods’ (under the Sale of Goods Act 1979) have been considered to constitute something in the way of tangible media rather than pure digital products (St. Albans City and District Council v International Computers Ltd [1996] EWCA Civ 1296).  Similarly, it is not clear whether the safety standard set out in the General Product Safety Regulations 2005 would apply to online/digital products; the Regulations do not expressly deal with the issue.

Later legislation (the Consumer Rights Act 2015) expressly separates the concept of digital goods from physical ones by introducing ‘digital content’ as a new and entirely separate category of product from other goods and services. Digital designs for 3D print appear to fall somewhere in-between these concepts, bridging, as they do, the online and offline world.

(2) Price paid & other limitations

Chapter 3 of the Consumer Rights Act 2015 created a new category of consumer right which implies terms such as fitness for purpose and satisfactory quality into contracts to supply digital content. Designers of digital products are likely to fall within the definition of ‘trader’ therein. Thus, a contract between the designer and consumer to supply a digital design could, at first sight, benefit from those implied terms. However, under s 33(1) those terms will be implied only if the digital product is supplied to the consumer for a ‘price paid’. A free download is not caught and, even if it were, compensation under the 2015 Act would be limited to damage to a device or other digital content which belongs to the consumer; there is no general right to compensation for other damage caused by digital content such as physical damage to person or property.

(3) Manufacturer

The General Product Safety Regulations 2005 make it an offence for a ‘producer’ to place a product on the market or supply a product (or offer or agree to do so) unless it is a ‘safe product’. A producer includes a designer since it is generously defined to include manufacturers, branders, importers and ‘other professionals in the supply chain insofar as their activities affect the safety properties of a product’. 

The Regulations assume an underlying business model that is simply not present in domestic 3DP, ie the presence of a manufacturer capable of carrying out quality control, safety assessments, market testing and so on. In domestic 3DP the consumer printing out the physical product is to all intents and purposes the ‘manufacturer’. Meaningful regulation of safety via quality control duties and testing is, therefore, not possible. This leaves the designer of the digital product as the key actor upon whom regulatory obligations may be placed. Such obligations may sensibly be limited only to facets of the design itself and, perhaps, assembly and product safety information. The manner of construction, materials selected and so on will be in the consumer’s hands who may also be the victim of any defect in the printed physical product. This highlights the inadequacy of offline rules for online product safety issues and raises the issue of whether this form of legal protection should apply to online consumers at all.

A remedy in contract?

When a consumer downloads a digital design from a file-sharing platform, his or her use of the design is likely to be governed by the ‘creative commons licence’ if the designer uploading the design to the platform has chosen that form of licence. That licence allows the copying and redistribution of the design in any medium or format and its adaptation for any purpose, including commercially. There are no warranties and it is expressly stated that no warranties are given that the licensee (consumer) has all permissions required for his/her intended use.

If the product causes injury, a claim for breach of contract is likely to suffer from the absence of any warranty as to quality. For the reasons explored above, such a warranty is unlikely to be implied by Part I, Chapter 2 of the Consumer Rights Act because the downloaded product is not a physical one or Part I, Chapter 3 thereof because it is free.

Negligence

Concurrent liability in tort (negligence) may be permitted provided there is nothing in the contract which expressly or impliedly excludes it (Henderson v Merrett Syndicates Ltd [1994] UKHL 5). Any clause purporting to exclude or limit the trader’s liability in the event of death or personal injury to the consumer will be regarded as unfair (Consumer Rights Act 2015, sch 2, para 1) and thus not binding on the consumer (s 62). A consumer could bring an action in negligence against the designer of the digital product for personal injury or damage to property if the latter is not excluded.

Negligence may assist in domestic 3DP scenarios because it is flexible enough to apply to (i) products comprising information such as digital products (Munro v Sturrock (t/a Scotmaps) [2012] ScotCS CSIH 35); and (ii) products which are downloaded and printed for free. For further detail on conclusions (i) and (ii), see Clerk & Lindsell on Torts (21st Ed.), para 11-09.

The neighbour principle established in Donoghue v Stevenson [1932] AC 562 has the flexibility to impose a duty of care on a designer of the digital product not to cause physical harm to the end users of the manufactured product. The challenge in such a claim is the higher evidential burden compared to modern consumer protection statutory regimes. A claimant would need to establish that design itself was defective and negligently so.

Platform providers

The absence of a manufacturer means that other parties in the product supply chain such as designers are likely to be the target for any legal claims. However, individual designers may not have the resources to resolve multiple personal injury claims and may not be insured against them. Consequently, the consumer may look to deeper pockets for a remedy - such as platform providers.

The liability concerns of platform providers may be evident in their standard terms for designers uploading content. Designers may be required to provide widely drawn indemnities or sign up to terms such as:

·       the platform disclaims liability for any product defect, any claim due to normal wear or product misuse, product modification, improper product selection and non compliance with any Codes;

·       to the extent permissible by law, the platform disclaims any liability for personal injury or death resulting from the assembly or operation of products.

The platform provider is unlikely to be bound by implied terms as to satisfactory quality and fitness for purpose because traders providing services via which digital content reaches the consumer are expressly excluded under the Consumer Rights Act 2015, s 33(4). However, if a consumer has been injured a claim in negligence may be possible as such liability may not be excluded.

Should consumers of 3DP benefit from consumer protection laws?

There appears to be a consensus that significant adoption of domestic 3DP is some way off. If and when its use reaches more than a de minimis threshold and injuries from defective printed products result, product safety legal frameworks may require reform. Helpful guiding principles may comprise (a) seeking to achieve the goal of regulatory ‘equivalence’ in respect of comparable offline and online world activities; and (b) the avoidance of unnecessary regulation.[3] With this in mind, it is suggested that the following considerations are relevant:

  • ·       What regulatory outcome is needed? Where the consumer’s right to physical security is at stake an absence of regulation may not be justifiable, especially where offline consumers of the same product (perhaps even affixed with the same trade mark) have a number of statutory protections and remedies.
  • ·       As in the offline world, a fair balance of interests between the consumer and economic actors involved is desirable.
  • ·       Achieving ‘equivalence’[4] could mean equivalent outcomes in remedies and penalties for defective online and offline products.
  • ·       Achieving ‘equivalence’ could also mean equivalent obligations for online and offline manufacturers (if any), designers and branders.
  • ·       If an offline actor is not present in an online scenario or vice versa (eg the manufacturer in domestic 3DP is not present in the online scenario), true equivalence may be an unrealistic goal and this should be noted and addressed.
  • ·       Once a regulation is proposed, will this have an impact on behaviour in a way that achieves the stated regulatory aim?

Whatever regime is adopted, there ought to be good reason for treating online designs differently from equivalent offline consumer goods. This is particularly relevant given that the development of online markets has reached a stage where the historic preferential treatment for online businesses is being challenged. 

Jane Halkerston is General Counsel at Reference Point Limited.



[1] Insight Report ‘Shaping the Future of Retail for Consumer Industries’ (January 2017)

[2] “3D Printers will Change Manufacturing”, 29 June 2017.

[3] This formed part of the Bonn Declaration 1997, principle 22 which was adopted by participants of a Ministerial Conference organized by the European Commission and German Government in ‘Global Information Networks. Realising the Potential’.

[4] For an in-depth discussion of the meaning of ‘equivalence’ and for the other considerations listed above see Online and Offline Equivalence: Aspiration and Achievement by Professor Chris Reed (International Journal of Law and Information Technology Vol 18, No.3, p 256).

 

Published: 2018-02-14T15:00:00

    2 comments

    • Missing a “thought” there!
      Neil Brown, 06:51:48 16/02/2018
    • This is a very interesting piece. In terms of platform liability, for platforms which operate as repositories of third party designer content (such as Thingiverse), even without an express exclusion of liability, I should have that Art 14 2000/31/EC would offer a substantial degree of shielding from claims, whether based in negligence or otherwise.
      Neil Brown, 06:34:51 16/02/2018

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