The law on consumer goods is currently underpinned to a significant degree by the need ethic (prioritising protection of consumers as vulnerable parties, over business self-interest and consumer self-reliance). This is manifest in strict and quasi-strict liability standards. Notwithstanding 3D-printing innovations, there is a good case for adherence to the need ethic: The risks (of poor quality and unsafe goods) are as high as before (or higher); consumers are as vulnerable (or more so) than before; and there is insufficient evidence that the need ethic undermines innovation. We will argue in this paper that, despite the innovative aspects of 3D-printing, the law can often continue to reflect the need ethic via existing legal principles (current strict and quasi strict liability standards), subject to some extensions (eg as to supplier and producer liability for digital content), and through clarifications of existing legal rules and principles (eg as to who counts as a professional business supplier). However, to ensure that the need ethic is respected fully in all aspects of this technology, the law may need to go beyond these clarifications and modest extensions. For example, the increasing difficulty of locating the source of a quality or safety problem and the impact this has on a consumer’s ability to discharge the burden of proof, increase the need to impose some ‘network’ liability, involving re-allocation of responsibilities to traders (e.g. internet platforms) who would not be responsible under traditional legal regimes.
This analysis is significant in providing specific doctrinal solutions for an important and emerging sector of the consumer economy. More generally, it provides a new theoretical framework for analysing how consumer law should deal with the challenges of innovation.
Howells, Geraint and Twigg-Flesner, Christian and Willett, Chris, Protecting the Values of Consumer Law in the Digital Economy: The Case of 3D-Printing (October 29, 2018) in De Franceschi, et al (eds), Digital Revolution – Challenges for Law. Data Protection, Artificial Intelligence, Smart Products, Blockchain Technology and Virtual Currencies, forthcoming.