Could a burning hoverboard help change platform liability rules?
Connected consumers roundup #14
Product liability sets out where legal responsibility, and therefore compensation for harm lies when consumer products fail. In other words, who gets sued if something goes badly wrong? The concept of liability has become more important since the rise of online marketplace platforms who have been defined as ‘intermediaries’ or ‘neutral platforms’ who connect buyers and sellers. By this definition, they are ‘just the tubes’ and therefore nothing to do with what flows through them. This has left some serious gaps in safeguards for shoppers who can and do buy products which are unsafe. A 2020 study by European consumer associations found two thirds of products bought on online marketplaces were non-compliant with EU safety laws including exploding power banks, toxic toys and faulty smoke alarms. Self-regulatory codes and various schemes are in place, but to date online marketplaces have fought hard not to be held liable for problems in most jurisdictions.
A recent US judgement could change this, it deemed Amazon was legally and financially responsible for the safety of a hoverboard that caught fire even though it didn't make the product. Effectively, the judgement says Amazon is a key part of transactions as it has a 'direct link' to customers and this puts it in a different category to a neutral intermediary. In Europe, product safety laws are under review for the first time since 2001 and consumer groups want online marketplaces to be seen as ‘business operators’ in the supply chain and thus have more responsibility for product safety.
Another interesting US development on platform liability happened this week when a US court ruled that Snapchat could be sued for the wrongful deaths of a teenage driver and their passengers who had a fatal accident whilst using a 'speed filter'. This filter captures and broadcasts the speeds at which people drive. The case was initially dismissed under a rule known as Section 230 which covers platforms in the US. The rule states that “interactive computer service” can’t be treated as publishers and are therefore not responsible for third-party content. The initial claim by the drivers’ parents was turned down because it was the users who were uploading third-party content to the ‘speed filter’. However, on appeal the judge ruled that the design of the Snapchat platform itself - as well as the actual user content being posted - could also be implicitly rewarding the reckless and ultimately fatal behaviour, .
Suggesting that the way platforms are designed could contribute to their liability could shake up how responsibility is understood. According to Stanford’s Digital Policy Centre, the path is now open for a precedent to be set:
This uncertainty regarding Sec. 230’s applicability may create an opening for more cases against tech companies for flawed platform design, and increases the chances that the Supreme Court will hear a Section 230 case to settle the contested legal landscape
The Snapchat and Amazon marketplace decisions means the argument about who bears responsibility and liability could reach a head in the next few years which could fundamentally change the way platforms operate.
Short takes
What does an environmentally friendly website look like? The carbon cost of digital technologies from bitcoin to Netflix has even caught the attention of the style elite (and they thought had enough to worry about with plastic sequins and fast fashion). This article in Vogue explores the issue and gives an example of one designer’s low impact website: https://lowimpact.organicbasics.com/eur
Right to repair legislation in the US is under threat from big tech companies: they are opposing new rules that would allow people to get their gadget fixed by any provider, claiming that it would threaten the safety and security of consumers’ devices. Consumer advocates say the companies arguments are about market control and that there’s no evidence third party repairs would be more risky: https://www.bloombergquint.com/business/microsoft-and-apple-wage-war-on-gadget-right-to-repair-laws
Smart pet bowl to keep your furry friends fit and healthy: Purina have launched an internet-connected feeding bowl for cats and dogs, which personalises food recommendations if details of the breed, age and size is fed into the accompanying app. Drawbacks are that it would only recommend Purina brands, thus locking your pet into a walled garden without their informed consent. And for felines I anticipate other problems - Wafflez would require a complex network of trackers and sensors to figure out exactly how many stealth trips to next door’s food supply he makes of an evening. https://www.itnews.com.au/news/purina-to-take-guesswork-out-of-pet-nutrition-with-iot-smart-bowl-564698
Long read: Last week’s Connected Consumers covered some of the likely impacts of Apple and Google’s changes to data tracking practices. This piece from Quartz argues that any online privacy gains will only be felt by the wealthy: https://qz.com/2008372/recent-online-privacy-gains-will-benefit-rich-countries-first