On 16 May, Ecommerce Europe co-signed a joint industry statement with other business organisations on the Product Liability Directive. In the statement, the signatories highlight the need for more balanced provisions in the proposal, maintaining the foundation of the well-functioning long standing rules in the liability directive.
The statement urges legislators to take several points into consideration for the revision:
- Liability of software — The inclusion of software in a strict liability regime brings a host of new questions, such as the relationship to digital services or the application of the concept of defectiveness. We believe more investigation into the effects of this extension is needed, as there is now greater legal exposure for software developers.
- Sufficient protections against malicious mass-claims and third-party litigation funding — We have noticed a growing number of unregulated, profit-motivated, third-party claims taking advantage of consumer claims to launch class actions. Such practices must be addressed and prevented, yet the proposed revision of the PLD would, in fact, facilitate them.
- Narrow key concepts — The revision’s expansion of the definition of “damage” to include psychological harm and data loss will only cause legal uncertainty as it can lead to misalignment with EU and national law. We also wish to draw attention to the added factors for determining defectiveness, such as reasonably foreseeable misuse or regulatory intervention, which would likewise create legal uncertainty.
- Safeguards on evidence disclosure orders — It is essential that Europe avoids creating a widespread culture of “discovery”. Disclosure orders must ensure that the evidence requested is strictly necessary and proportionate to the request.
- Limiting the alleviation of the burden of proof — The cornerstone of the PLD is that the claimant must prove the damage, the defect and the causal link between the two. Under the proposed alleviations we would see the exact opposite occurring, creating a reversal of the burden of proof and requiring defendants to prove a negative. We see the scope of the proposed criteria for these alleviations as much too broad; they should be narrowed or removed.
- Reinstating thresholds — The monetary upper and lower thresholds present in the 1985 PLD are essential to prevent a backlog of small claims which SMEs have fewer resources to fight, and to allow claims to remain insurable. Their removal undermines the goals of consumer protection.
You can find the full statement here.
