06.02.2020
Request for a preliminary ruling on product liability law – daily newspaper as a (defective) “product”?
By decision of 21 January 2020 (1 Ob 163/19f), the Supreme Court referred a question to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU, which is simplified as follows: “Should the European Union Product Liability Directive be interpreted as meaning that a physical copy of a daily newspaper containing a technically incorrect health tip, the following of which causes damage to health, is also to be regarded as a (defective) product?
The decision on this question is naturally of great importance, especially for newspaper publishers. There is no relevant case law on this issue, which is why the Supreme Court asked the European Court of Justice for clarification. In this context, liability under product liability law is supported by the fact that consumers rely on the content of printed works (and not on the physical representation or "construction" of a newspaper). The main argument against such (stricter) liability under product liability law criteria is that the written information as such (the "newspaper article") is not a physical thing.
The case was based on the following facts: In the regional edition of a newspaper, under the heading “Looked and lived healthily“ grated horseradish was reported, and in particular it was announced that it could be used to reduce pain in rheumatism; the affected areas should first be rubbed with lard and then the (grated) horseradish should be applied. The compress could be “definitely 2 to 5 hours“ before removing it again. The duration was wrong: it should have been “2 to 5 minutes" One patient, a subscriber to the newspaper, trusted that the treatment time stated was correct and left the bandage on for about 3 hours; she only removed it when she was already in severe pain and a toxic chain reaction had occurred (due to the sharp mustard oils contained in the horseradish). According to the plaintiff, serious injuries had already occurred.
Both the first and second courts dismissed the claim, which was essentially for damages amounting to €4,400.00. In summary, the respective allegations did not give rise to liability under the Product Liability Act. The Supreme Court, however, decided to suspend the appeal proceedings and refer the case to the Court of Justice of the European Union.
The Supreme Court justified its decision by stating that it was disputed whether or not a publisher or media owner of a daily newspaper who arranged for the publication of an article was liable for the incorrect content of the newspaper under the Product Liability Directive (Directive 85/374/EEC) and/or the Product Liability Act. There are also different opinions in German literature; some doctrines limit liability for information carriers to damage caused by their physical nature (e.g. a toxic book cover), while others also affirm product liability due to faulty intellectual performance (an example of this could be a recipe in a cookbook that may even be toxic).
The answer to the question is very important: Liability under the Product Liability Act is generally to be affirmed if the product itself is "defective", i.e. if it disappoints "justified safety expectations". The term "defectiveness" of a product (Section 1 Paragraph 1 of the Product Liability Act) must therefore be strictly distinguished from the term "defectiveness" in warranty law, and probably also further, since it also includes, for example, instructional defects (i.e. faulty assembly instructions), and because it is not relevant for liability under the Product Liability Act whether the product itself is suitable for the intended use. A defect under product liability law is therefore not the same as a defect under warranty law. The question is also important because (in favor of consumers, but not in favor of companies, who generally cannot rely on the Product Liability Act) strict liability can arise, which is why the consumer is generally in a better position. The limitation period (10 years) and the fact that the “manufacturer” of a product must prove that he is free from defects also significantly benefits the consumer.
If the European Court of Justice were to answer the question of whether a daily newspaper is also to be regarded as a “product” within the meaning of the PHG in the affirmative, this would mean that consumers who suffer damage as a result of “incorrect information” (just think of investment recommendations, recipes, hiking or nautical maps, do-it-yourself instructions, health-related reporting or similar!) could make very extensive claims against media owners.