Pass the mustard: Incorrect advice found in a newspaper regarding a horseradish herbal remedy is not a "defective product" under the EU Product Liability Directive

On 10 June 2021, the Court of Justice of the EU (CJEU), handed down its judgment following a reference from an Austrian court, deciding that inaccurate health advice in a hardcopy newspaper which resulted in injury to a reader was not a defective product under the Product Liability Directive (85/374/EEC) ("PLD").

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). The CJEU’s 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 [PLD], 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. On 31 December 2016, the newspaper published an article advising 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 the CJEU’s decision

The CJEU 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 court highlighted that a product’s defective nature is determined on the basis of certain characteristics inherent to the product itself, such as its use, presentation and the time it was circulated. The language used in the PLD, including the definitions 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”. There is no provision in the PLD for the possibility of liability for defective products in respect of damage caused by a service (i.e. the inaccurate advice). The service was not part of the inherent characteristics of the printed newspaper which alone determines if the product was defective. The CJEU also pointed out that the liability of service providers and the liability of manufacturers of products constitute two distinct liability regimes so that the activity of service providers is not the same as those of producers, importers and suppliers of products.

However, the PLD does not specify that ‘products’ must be tangible items. The CJEU states that the meaning of ‘product’ within the PLD means all movables (even if incorporated into another movable or into an immovable) and electricity. 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’. That said, the CJEU noted that the concept of ‘product’, within the meaning of the PLD, is defined within the general context of the producer’s liability for the damage caused by their defective products.

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 CJEU states that when the product at issue is an information medium, it is limited to harm caused by the physical item itself, for example, the poisonous binding of a book or poisonous ink. Liability should be restricted to liability attached to the danger posed by the object and not the advice given, as intellectual products are not ‘products’. Such a broad interpretation of the concept of ‘product’ would result in any written expression of any idea coming within the scope of the PLD, which provides for strict liability on the part of the producer. Information should fall outside of the scope of that PLD, as it would be arbitrary to connect liability for defective products to the fact that the information had been set down in physical form. It was also noted that although strict liability for defective products is inapplicable to a case such as this, other systems of contractual or non-contractual liability based on other grounds, such as fault or a warranty in respect of latent defects, may be applicable.

If a broad approach was taken, 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.

Comment

This CJEU decision 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.

If you have any queries in relation to this decision 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).

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