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Note - I'm not asking legal advice. I already have a basis of claim in my actual case. But the case prompted a question mark over an apparent loophole in UK consumer protection/product liability law, and I'm wondering if it's covered in some consumer law I don't know about.

Background

I bought an expensive computer networking product, some years ago. The firmware hadn't been updated since, so I decided to do so. The manufacturer puts new firmware on their website, together with "release notes" (guidance and instructions concerning the update, and procedures to follow in updating). The instructions state simply, to upload the firmware to the device, and restart the device. No warnings or caveats are stated.

On following these instructions, the product was rendered inoperable - "bricked". I found numerous threads on the manufacturers support website where many people had exoerienced this exact same issue, often with this exact same model, over a period of months or years. The manufacturers staff members' response was invariably that this update, applied as in the release notes, can irreparably break the product in some circumstances. Specifically, if the product still had old/original firmware, then the procedure in the release notes would render the product irreparable. A completely different procedure, not in the notes or mentioned by them, should be followed instead. If the broken product was in warranty, it would be replaced, but otherwise nothing could be done except pay the very high price for out-of-warranty replacement/repair.

I'm happy to rely on tort in my own actual claim (see below), but it never hurts to know your law fully. I am trying to understand whether any specific product safety laws apply as well, since the Consumer Rights Act 2015 seems to exclude this (it falls in various loopholes?):

  • CRA2015 for the update and release notes as "digital content". But s.33 says it is only covered if a price was paid (1), it was supplied free "with" other paid items (2), or it is not generally available unless some paid item was purchased (2). The update was free, it was supplied separately and independently from any paid product, and it is available freely to all, so this doesn't seem applicable.

  • CRA 2015 for the update and release notes as a "service". But s.48 seems to require a contract, and no explicit contract was required to be clicked for download or installation. Would a court impute a contract, sufficient to meet this requirement, regardless? If not, this doesn't seem applicable either.

Negligence seems clear (duty of care, reliance, defective software usage instructions known for years to cause serious damage, defective instructions continue to be provided with no warning, predictable damage resulted), so I'm happy about my own actual case, but I'm really surprised not to find any UK consumer protection for harm-causing product updates if they are made freely available after and separate from purchase, by a manufacturer, as this is such a common situation.

Are there any UK consumer laws or product safety/quality laws that might be applicable to free but defective software update?

  • It is just missed. UK consumer law assumes that when you take a product from the store it is either fine or it isn't (it may look fine, and the fault may not be visible yet, but a product may stop working after 18 months instead of four years due to a production fault). The problem that the manufacturer might damage the product long after you purchased it didn't occur to anyone. – gnasher729 Jan 20 at 13:37

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