liability

Welcome to Liability

2012-10-08T05:51:00.003-07:00

As we start work on the module I want to make a posting which is perhaps rather different from the norm. If you have had the chance to look back at previous postings you will realise that they normally relate to topical issues. Today, I’m going to say a bit about myself and throw out some opening thoughts about the module.

I live in Glasgow and that perhaps says a lot about the potential of the Internet. I’m teaching this course for the University of Southampton which is about 500 miles away. I visit Southampton maybe 3-4 times a year and do the rest of my work over the Internet.

I’ve taught in the field of Information Technology Law for about 25 years. It feels longer. My book on IT law is now in its sixth edition and I have a new book on Telecommunications Law due out early next year. Its aimed at the practitioner market and is being sold at an eye watering £150.

I’m married to Moira – who you will also get to know on the course – and we have 2 sons, Thomas and James. Apart from the family another love of my life is Glasgow Celtic Football Club. If you ever want to contact me to ask a favour, you might check to see how we fared in our latest matches. We are doing quite well at the moment.

Turning to liability, this is a module which raises a great number of issues and links well with a good number of the other modules. We are dependent upon IT applications for so much of our lives and with the emergence of what is referred to as the ‘Internet of Things’http://www.bbc.co.uk/news/business-13632206 this is increasing further. What happens, though when something goes wrong? A simple question but, fortunately for lawyers, one which does not have a simple answer.

We will consider a range of issues and different forms of liability. What ,for example, might sale of goods notions of satisfactory quality and fitness for purpose mean in a software context? What is the standard of care expected of a reasonable software developer? We have lots of questions but perhaps surprisingly few answers.

Anyway, please respond to this posting with a little bit of data about yourself and your thoughts, either about the points I have made or your own thoughts of software problems and how you would like to sue Microsoft (or Apple) for a million pounds!

Google and Facebook on trial in India

2012-03-13T16:07:00.002-07:00

Not sure if anyone is taking the liability module this semester, however, an interesting topic in any event: Google and Facebook will be going to trial, for not censoring content.

'Google and Facebook have argued that India's information-technology law protects
them from liability for content posted by users.'
http://online.wsj.com/article/SB10001424052702304537904577277263704300998.html

Libel Tourism

2012-01-30T03:07:00.000-08:00

Pat McQuaid, Hein Verbruggen and UCI launch defamation action against Paul Kimmage

A defamation claim involving material printed in English and French newspapers being brought by an Irishman against a fellow Irishman in a Swiss court. Clearly libel tourism is not solely an English problem.

It's interesting to see that the claim here has been brought action the individual author rather than the publisher, who you would think at the very least would be joined in the action.

Turn around where possible...

2012-01-06T05:47:00.000-08:00

With trucks getting stuck in small lanes and cars being directed to go down no entry routes and along footbridges, where does liability lie for the costs incurred to retrieve vehicles and damage caused as a result?

If a sat nav directs a user through an inappropriate use, it would seem that liability should rest with the sat nav producer for giving incorrect information. However, there is a strong argument to suggest that logic should prevail and drivers should be required to take some responsibility for their own actions. Can it really be said that if a driver follows a sat nav’s instructions blindly and drive the wrong way down a one way street or drives along a street which is too narrow for their vehicle that liability should rest with the sat nav manufacturer?

On occasion there have been stories where people follow sat nav directions in lieu of paying attention to road signs. If a driver disobeys a road sign whilst following a sat nav and ends up in the creek without a boat would liability lie entirely with them or should the sat nav producer take some responsibility for wrong directions?

There is an argument that both have been negligent. In both situations, at best this would surely be contributory negligence? I think there is a strong argument that liability in such circumstances should lie with the driver of the vehicle.

Whatever happened to common sense; has it been replaced by the computer?

Sat-nav problems persist at Llanelli crematorium

Astrazeneca UK Ltd v International Business Machines Corporation [2011] EWHC 3373 (TCC)

2012-01-03T08:30:00.001-08:00

This is a case of note when considering recovery of court costs in light of the proposed changes to the small claims track, which would mean any claim under £15,000 would result in no entitlement to costs.

“Following a judgment determining (largely in favour of the claimant) a number of issues arising from the termination of a contract, Ramsey J had to deal with costs of the proceedings. He decided to give effect to a clause in the contract that provided that the defendant should indemnify the claimant from and against all defence costs incurred by the claimant in connection with any dispute in which judgment was given in their favour. The decision demonstrates the value of these clauses.”

10 great software glitches for 2010

2011-11-16T09:18:00.000-08:00

In addition to the "20 famous software failures" as posted in the course notes, I thought this was of interest:

Ten great software glitches for 2010

Apple plagued by bugs

2011-11-16T08:57:00.000-08:00

Apple's release of the iOS5 software affected the battery life of some iPhones, iPads and iPods provides a clear example of how software will contain bugs when first delivered and that the supplier should be given the opportunity to correct the errors.

Can you imagine if everyone experiencing problems with their Apple products had a right to claim as soon as the bugs in the update came to light? When put into a context such as this, it seems like the only sensible answer was to allow Apple the time to apply a fix.

The questions that then arise are: how much time should Apple be allowed to fix the problems; how long is it reasonable to expect people to put up with a mobile that has a battery life of half a day?

In this case such questions have not been answered as Apple has released an update to resolve the bugs in the software upgrade.

Perhaps this is the reason that so few cases come before the courts - they are resolved by the supplier fixing the defect to a point where the customer is satisfied.

For more info: http://www.telegraph.co.uk/technology/apple/8866918/Apple-software-bug-causing-iPhone-battery-problems.html

Software + glitch = recall and repair

2011-10-24T09:10:00.000-07:00

An example of a software defect that could have had disastrous consequences serves as an excellent example of how businesses will often try to recall goods and rectify software glitches even if the glitch occurs many years on.

The glitch in this case relates to the cruise control not disengaging in the ‘normal manner’ which could have had fatal consequences. As such, Jaguar could have the best exclusion clause in place but still have unlimited liability for death or personal injury (if by their negligence) as this cannot be limited. This could be very costly for Jaguar, but commercially, I think that there is a more pressing issue here; what would happen to the Jaguar brand if someone died or was injured as a result of the software defect?

This case demonstrates that we can exclude liability to the greatest extent possible, but the cold hard fact is, in some cases that simply won't be enough; a practical, commercial assessment needs to be reached. From a quick look at recent case law that is perhaps, what the courts are driving at - don't be too quick to lean back on your contractual rights and terminate the contract then sue for damages, look at how the situation can be resolved in a way that’s suitable for both parties.

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"Jaguar recalls cars after cruise control fault"

"Jaguar Recalls Nearly 18,000 Cars Due to Software Glitch"

EU Directive on Consumer Rights

2011-10-24T02:15:00.000-07:00

The EU's Consumer Rights Directive (Directive), which the EU Council voted to adopt on 10 October, could have an interesting impact on liability in all consumer to consumer contracts for the supply of goods and services.

In preparation for the Directive, plans were announced recently to put in place a single UK Consumer Bill of Rights (Bill) which involves a radical shake up of the current legislation.

It will be interesting to see how well the Bill will apply to software given the uncertainty of whether software is a good or service! Also, depending on how far the Bill goes, the impact on business’ ability to restrict liability could be significant.

The Directive doesn't need to be implemented by UK law until the end of 2013, although given the progress that has already been made, the Bill may well be in force sooner. Either way, it will be sometime before we know the full extent of the changes that will be made to the current legislation; however it is one to be aware of when putting consumer contracts together.

A nice summary of the proposed legislation can be found here.

Vulnerability testing, bugs, responsible disclosure and liability...

2011-10-15T01:07:00.001-07:00

There is an interesting story from Australia, showing one of the many pitfalls facing those who spot (or, perhaps, set out to find) security problems in third party properties, even where their only action after determining the problem is notifying the affected institution.

Based on what was posted in the article, I'm struggling to determine why the bank thought that it might be in its interests to contact the police (otherwise than a required NRA notification, if indeed required under Australian law), let alone suggest it might be entitled to recoup the costs caused by its own security problem. Not great from a PR point of view, really!

A security consultant who quietly tipped off First State Superannuation about a web vulnerability that potentially put millions of customers at risk has been slapped with a legal threat demanding he allow the company access to his computer, and warned he may be forced to pay the cost of fixing the flaw.

More details here.

Starting work in earnest

2011-10-09T10:24:00.000-07:00

Dear All,

The time has come to talk about subjects in more detail. The first part of this posting is generic to all the modules and if you are connected to other blogs you will see it repeated there. The second part will be specific to Liability in the Information Society

Let me start by talking a little about what we expect of you and the way in which the course is structured. Each module lasts for 12 weeks and is divided into 4 themes. At the end of the theme we ask you to submit a reflective report on your experiences of and thoughts on the topics covered. Specific dates will come out later in the week.

There might appear to be a daunting amount of material in each theme. If it is of comfort, you are not expected to read it all at this stage. When we move to the middle of the semester you will be given topics for the end of semester essays. At the risk of giving away state secrets, there will be 4 topics. With 4 topics and 4 themes you might draw an obvious and correct conclusion. If you choose to write an essay on a particular topic, you will be expected to do a good deal of research and the materials will be of great value to you then.

I suggest that you listen first to a podcast. For the liability module, there are 12 podcasts, one for each week of the module. You might then look at the chapters in my book and the course notes (often the same). I'll try either in the podcasts or in postings here to indicate key items of reading. I would like you to start (if you are not already used to) reading cases and statutes. Don't worry, especially if you do not have formal legal qualifications if you don't understand everything. It does take time and for now you will be fine with secondary sources, such as my book, which will summarise materials for you.

Very importantly, if you feel you don't understand something, ask. The teachers are here to help you. By all means email me privately although I will tend to post replies - without identifying people - to this blog. Almost invariably, if one student has an issue, others will have the same difficulty. I really would encourage you to post queries to this forum. There is no shame in admitting to doubt. I near constantly send off (and receive) emails from colleagues along the lines 'I've been looking at this case and am not sure if I understand what it is about. This is what I think, but it may be nonsense'. Two or more minds are always better than one.

I'm often asked how much time you need to spend on the course and that is always a very difficult question to answer. There are so many variables in terms of experience and language skills and also, quite important, your own expectations. What I would say is that you need to spend a lot of time on your end of module essay (which will count for 60% of the final mark). The bulk of that work will have to be carried out in December and January. If you can book some holiday for that period, it might be helpful.

You were admitted to the course because we believe that you can pass. We believe that you can pass without giving up every other aspect of your life. Indeed you will probably damage your studies if you try to devote every spare waking moment to them. Do your honest best, take some time off, and I think it will be good enough.

Turning to the liability module, you might think - perhaps drawing on your own experiences - how software and software contracts might fail. You need then to think how the law might apply in such cases. It is important to keep in mind the nature of contractual liability and the fact that parties are generally required to provide what they promised - with no excuses permitted. Determining what is promised is not always easy and you might have a look at the Saphena and St Albans' cases.

As always, any questions or problems just ask.

Best

Ian

Best wishes

2011-10-09T02:32:00.000-07:00

Wishing you all the best with this blog

Regards

Steve Saxby

Liability in the Information Society

2011-10-08T00:06:00.001-07:00

This blog is for students in the LLM module Liability in the Information Society. Anyone can post comments or respond to any comments already on the site. Please do both.