Disruptive Technology – 3D Printing and Product Liability

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 (21^st 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.