1st Supplement available here.
On 9 June, the ELI Council formally approved the 1st Supplement to the ELI Draft of a Revised Product Liability Directive, entitled Liability for Defective Software Under the New EU Product Liability Regime: Will Liability Under the New PLD Extend to Social Media, AI Chatbots and Similar Digital Consumer Offerings?
This Supplement examines a rapidly emerging question in European product liability law: whether providers of social media platforms, AI chatbots, and comparable digital consumer offerings may be exposed to liability under the new Product Liability Directive (Directive (EU) 2024/2853). While litigation concerning the harmful effects of such digital products is already gaining momentum in the United States, similar claims are likely to arise before European courts.
The Supplement analyses the Directive’s newly expanded concept of ‘product’, which expressly includes software and AI systems, and explores whether and under what circumstances digital consumer offerings may fall within the scope of the new liability regime. In particular, it identifies three potential routes through which liability under the Directive may be triggered.
The first route applies where the digital offering itself qualifies as software that has been placed on the market or put into service. In such cases, the offering may constitute a product within the meaning of the Directive, making its manufacturer potentially liable if the software is defective and causes harm. Particular attention is given to the distinction between software-as-a-service, which is covered by the Directive, and genuine services, which remain outside its scope.
The second route concerns situations where the digital offering is characterised as a service but is supplied through defective software operating in the background. In these circumstances, liability may arise from the software used to provide the service, even where the service itself falls outside the Directive’s scope.
The third route examines whether a digital offering that primarily constitutes a service may nevertheless qualify as a component of software that is clearly a product, such as a mobile application used to access the service. Under certain conditions, defects in such related services may render the software product itself defective and thereby trigger liability under the Directive.
The Supplement further emphasises that bringing a digital offering within the scope of the Product Liability Directive is only the first step. Claimants must also establish the Directive’s additional requirements, including the existence of compensable harm, defectiveness, and causation. The analysis highlights particular challenges associated with proving psychological harm and establishing causal links between software outputs and subsequent human decisions.
Finally, the Supplement recalls that the Product Liability Directive is only one potential basis of liability. Depending on the circumstances, providers may also face liability under national negligence regimes, including for breaches of obligations arising under the Artificial Intelligence Act, the Digital Services Act, and other applicable regulatory frameworks.
The Supplement contributes to the ongoing debate on the future of liability for digital technologies and offers guidance on how courts may interpret the new Product Liability Directive in an era increasingly shaped by software-driven products and services.
More information about the project, including the ELI Draft of a Revised Product Liability Directive (2022), can be found here.
For press inquiries and additional information, kindly contact the ELI Secretariat (secretariat@europeanlawinstitute.eu).
