6.4 Product liability and negligence

When the use of a piece of physical machinery results in harm of some kind, most people would consider it reasonable that anyone suffering that harm should be able to seek redress from the manufacturers and suppliers of that machinery. In particular, in cases where machinery is faulty due to negligence on the part of manufacturers or suppliers, the case would seem clear. However, losses resulting from ‘faulty’ goods may not necessarily result directly from failure of the machinery.

It could be argued that published material – involving no physical machinery – could also lead to damages, with consequences for which the author and publisher of the material could be held responsible. For example, an academic paper about software viruses might include sufficient information about the construction of viruses to enable someone to construct one for themselves. If someone did construct a virus using the information in the academic paper, and damaged someone else’s software as a result, it could be claimed that the author and publisher were liable.

In 1985 the European Community passed a directive (EC, 1985) on the strict liability for defective products regardless of whether or not this arose from negligence – so that anyone in the supply chain could be sued. When this directive was first promulgated the UK software industry protested and petitioned the UK government to make software exempt. When the UK law to embody this directive was enacted, software was not made explicitly exempt, but ‘product’ was defined in such a way that it is not clear whether or not software was included. The difficulty with software is its ‘floodgate risk’: if faulty, it can lead to unlimited liability through its widespread use.