Previously in this column we have covered the issues that the law has in coping with major advances in technology. Maybe I was a bit glass-half-empty. It occurred to me as I was appeasing a restless nine-year-old, frustrated by yet another Xbox automatic update, that there are times when the law seems to get it just about right.
The need to devise a legal regime for automatic and mandatory software updates is a relatively new issue created by the huge proliferation of digitally-connected products now on sale. Very often, manufacturers undertake substantial development even between the initial installation of software on to products in the supply chain and the commercial launch of the product.
So producers are required to assess the legal implications of a mandatory updates in general, including prior to first use. Are they required to give notice to end-users of such updates and, if so, what sort of notice is required? And do any notices need to be included specifically on the package of the product, or otherwise at the point of sale?
While I'm not aware of any country specifically legislating in this area, there are at least some common principles and, in Europe, a high degree of consistency. Typically, there are a number of legal risks relating to automatic software updates in consumer products, most of which depend on the nature of the anticipated updates. It's also common to differentiate between an initial, pre-first-use update and subsequent updates. In respect of subsequent updates, I would also probably differentiate between maintenance updates and functional updates.
A mandatory update prior to the first use of a product may well cause frustration to an impatient user but ought not to present a legal risk as long as the manufacturer explicitly states in the product description that the product will function on the latest version of its base operating system available from time-to-time, which may require the customer to install certain updates prior to use.
For any subsequent updates that don't fall into the above category, but which maintain the product only (e.g. error correction or bug fixing), one should always include language in the product terms specifically referencing that provider may push such maintenance updates to the product. For the sake of caution, it's also advisable to include a corresponding note on the packaging for the product to be sold in offline stores.
For any other subsequent update that adds new functions or otherwise changes customers' experience with the product, customer consent on an update-by-update basis is required. The customer must retain his or her right to reject such functionality update and continue using the product on a previous level.
Across the EU, the legal basis for consent and notice requirements in relation to automatic and mandatory software downloads are laid down in a 2011 EU Directive on consumer rights and the corresponding implementing laws of the various EU Member States. In Germany, this means the German Civil Code and here in the UK it's the Consumer Rights Act.
Way back in the 1990s when the last major overhaul of EU consumer rights was undertaken, there were plenty of software and software-based products on sale, but the technology didn't exist for the wide-scale mass update of such products on a push basis. For a time after the technology (and market practice) to make such updates was developed and widely implemented, lawyers relied on existing principles of consumer law and contract law to guide their manufacturer clients as to how to handle mandatory software downloads.
But in the larger scheme of things, the lawmakers gradually caught up and wrapped up a decent, workable legal approach into a wider overhaul of consumer rights legislation designed to cope with the current phase of transition to digital age.
No doubt this is only a stepping stone to an even more tech-savvy solution to the issue of digital product distribution – but at least we now have a legal regime that's broadly workable. So maybe the law does in fact deal with some technology changes better than others – although I still suspect that digital revolutions present a bigger legal challenge than digital evolutions.
Not that any of this provided any comfort to that frustrated nine-year-old who had to finish his daily reading session before he was allowed to turn on the infernally, eternally updating Xbox.