The Law Commission of England & Wales has recently announced its plans to review the product liability regime, including whether new redress rules are needed regarding AI systems.
Update on Product Liability Reform
The Law Commission has just announced a project to consider whether the UK product liability regime requires reform,[1] including whether new redress rules are needed for AI systems.[2] This initiative comes in the context of two proposed themes for Law Commission’s 14th programme – “emerging technology” and “leaving the EU.”[3]
Recognising that the current regime of the Consumer Protection Act 1987 (“the CPA”) is nearly 40 years old (and the EU Product Liability Directive[4] which the CPA implemented is 40 years old), the Law Commission considers that the law has not “kept pace” with the range of products and digital technology that has advanced since the CPA was introduced. Additional concerns are identified, such as the reported failure of the current regime to balance protecting persons from harm caused by defective products with enabling innovation and growth. Difficulties in bringing successful claims under the current regime were also reported to the Law Commission.
The Law Commission’s initiative must be viewed as overdue in the light of the European Union already having moved far ahead on this topic, with the new 2024 EU Product Liability Directive that came into force on 8 December 2024, and which Member States have until 9 December 2026 to transpose. Generally regarded as claimant-friendly, this new law includes remedies for a wider range of products, provides for disclosure of documents, and enables presumptions about ‘defect’ to be engaged in certain circumstances.
Next steps
The Law Commission invites views from stakeholders about the focus of its review project and what issues arise with the current product liability regime. There are no published deadlines for submissions but there is a plan to meet stakeholders to understand their experiences. A consultation paper is also promised, though the overall exercise must be viewed as very much in its infancy since, at the 31 July date of the announcement, the scope of work remains to be determined and no terms of reference with the Government have yet been agreed.
Comment
The Law Commission’s plan to update the product liability regime is a crucial step towards ensuring that the law keeps pace with technological advancements and provides consumer protection while supporting businesses and innovation. However, it lacks detail and comes very late when compared with the new EU law that is already in place and will seemingly apply in Northern Ireland.[5] The tone of the announcement suggests that shortcomings of the current regime will be a focus, and that a more consumer-friendly approach is needed to make it easier for people to bring successful claims. The new EU Product Liability Directive, which was changed for similar reasons as the Law Commission has now stated, will doubtless be closely studied.
[1] https://lawcom.gov.uk/project/product-liability/
[2] https://lawcom.gov.uk/news/artificial-intelligence-and-the-law-a-discussion-paper/
[3] https://webarchive.nationalarchives.gov.uk/ukgwa/20240605042856/https://lawcom.gov.uk/14th-programme/#theme
[4] Council Directive 85/374/EEC of 25 July 1985
[5] https://www.niassembly.gov.uk/globalassets/committee-blocks/windsor-framework-democratic-scrutiny-committee/com-eu-20242853/directive-eu-20242853-em.pdf
