An Austrian case, being considered by the Court of Justice of the EU (CJEU), has been reviewed by Advocate General Hogan (AG) – who has given his opinion that inaccurate health advice in a hardcopy newspaper was not a defective product under the Product Liability Directive (85/374/EEC) (PLD).

Case: VI v KRONE-Verlag Gesselschaft mbH & Co KG (Case C-65/20) ECLI:EU:C:2021:298

The PLD contains a strict liability regime for persons that suffer personal injury or damage to non-commercial property as a result of defective products. The PLD is implemented into English law by the Consumer Protection Act 1987 (CPA) and the CPA continues to apply in respect of the UK’s strict liability regime (even though the UK has now left the EU). This opinion, and the CJEU’s forthcoming subsequent decision, may provide a useful indication of how an English court will interpret the meaning of a ‘product’ under the CPA should a similar claim arise here.

The CJEU was asked to consider the following question:

Where a daily newspaper publishes inaccurate health advice in a daily column written by an independent newspaper columnist, can that newspaper be sued on the basis that it has distributed a defective product within the meaning of the [Directive], when a reader of the newspaper subsequently claims to have suffered physical injury as a result of following that advice?

The key facts

The Defendant is a newspaper publisher which publishes a regional edition of the ‘Kronen-Zeitung’, a popular newspaper with perhaps the largest circulation of any daily tabloid newspaper in Austria. The relevant newspaper article published on the 31 December 2016, advised readers of a “pain-free” remedy to alleviating rheumatic pain by applying a layer of grated horseradish to affected areas for “two to five hours” rather than the correct time of two to five minutes. The article’s author is a recognised expert in the field of herbal medicine (who has previously published many articles and books in that field).

The Claimant is a subscriber of the newspaper, who had read the article and followed the advice, leaving the layer of horseradish on her ankle for around three hours before removing it due to severe pain. The strong mustard oils in the horseradish had caused a toxic contact reaction. The Claimant brought a claim for damages for pain and suffering seeking compensation in the sum of EUR 4,400 and a declaration that the Defendant was liable for the physical injuries and future consequences of the incident.

History of decisions on the case

The first instance decision by the District Court for Commercial Matters in Vienna rejected the claim on the basis that the article was written by a recognised expert in the field who had published widely on the topic and the Defendant had no reason to check the written texts submitted. The court also noted that the expectation of the reader differs from that of a reader of a scientific article published by a specialist journal; as a tabloid newspaper, it could not be viewed in the same way.

The appeal to the Court of Appeal was also rejected, although on procedural grounds as the Court objected to the Claimant relying on facts supporting a claim of strict liability on the part of the Defendant for the first time in the action.

The Supreme Court then referred the question to the CJEU and held that if the word ‘product’ was given a broad meaning to include newspaper articles, then in principle, the Defendant would be liable for any personal injuries caused to the Claimant following the incorrect advice.

Summary of AG’s opinion

The AG has stated that it is clear from the language, objectives and context of the PLD that it applies to the physical properties of products only, so that it is not applicable in a case of this kind. The language used in the PLD, including the definition of ‘products’ and ‘producer’ relates to the production of “physical things” and the damage suffered as a result of a “physical defect in that product”. The European Commission has also confirmed the view that the definition of ‘product’ is broad, although, in its opinion it must be “industrially produced”.

However, the PLD does not specify that ‘products’ must be tangible items. For example, ‘electricity’ is expressly included within the concept of a ‘product’ and – in its Report of 19 February 2020 on the safety and liability implications of Artificial Intelligence, the Internet of Things (IoT) and robotics – the Commission suggests that the scope of the definition of ‘product’ should be broadened and further clarified to reflect better the complexity of emerging and disruptive technologies. This would open up the possibility of considering the information contained in the newspaper (rather than the newspaper itself) as possibly amounting to a ‘product’.

The AG also points out that if the injuries were caused by a staple or the toxicity of the ink used by a newspaper, then the injury would be more likely to come within the ambit of the PLD. However, given that the alleged defect relates to intellectual content rather than a defect in the physical product, such content amounts to a “service, not a product”.

As for the argument that the strict liability regime under the PLD should be applied to defects in the product as well as to its intellectual content, the AG states that: (i) the wording of Article 6 of the PLD relates clearly to defects in the product itself; and (ii) Article 1 does not provide for strict liability for mere advice. Liability has to be related to the putting into circulation of a product. The AG states that there is no direct causal relationship between the product and the damage to the injured person in the case of incorrect advice in a newspaper.

There would also be other inconsistencies; for example, advice given on radio or television is not subject to strict liability, so similar information contained in a publication should be treated in the same way.

The AG also noted the risks or implications if the CJEU was to rule in favour of the Claimant. Specifically, a range of claims may arise that relate to the defective or negligent supply of services (for example, written advice by an accountant or lawyer or medical reports). In such situations, by signing an advice or a report, the professional would ‘present himself’ as the ‘producer’ of a ‘finished product’ so as to fit into the ambit of the PLD. Service providers would therefore be exposed to open-ended liability on a strict liability basis to a large class of possible claimants.

This AG opinion reinforces the principle that the scope of the PLD was not designed to apply to the provision of services, but instead relates only to the provision of products (whether such products are tangible or, in certain cases, intangible).

This is particularly relevant in the context of organisations that provide to their customers new and disruptive technology offerings, which can involve a blurring of the lines between products and services. Specific examples include: (i) autonomous driving systems in the automotive industry; and (ii) IoT and connected device systems, whether for industrial or consumer use. Both of these examples often involve the supply of physical hardware or products (e.g. physical sensors or devices) and associated software or support (e.g. maintenance and software upgrades). In this context, there is ongoing debate at governmental levels as to whether the provision of software (and associated support) constitutes the provision of a product under the PLD (or, rather, amounts to the provision of a service, thereby falling outside the PLD’s scope). Following various consultations that have taken place since 2017, It is expected that the Commission will publish guidance on the PLD, including whether it remains fit for purpose in view of new technologies.

It will be interesting to note whether the CJEU follows the AG’s opinion, or whether it will diverge in any way. We will update this article once the decision of the CJEU has been handed down.

If you have any queries in relation to this AG opinion or associated issues concerning the PLD, the CPA or product liability, please feel free to contact Russell Williamson (who is a member of Bird & Bird’s Product Compliance and Liability group).