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6 J. Eur. Consumer & Mkt. L. 1 (2017)

handle is hein.kluwer/jeucml0006 and id is 1 raw text is: Journal of European Consumer and Market Law EuC1VIL 1/2017 Volume 6 14 February 2017 Pages 1-48 Editors: Prof. Dr. Christoph Busch, Universitat Osnabrick - Dr. Alberto De Franceschi, Universith degli Studi di Ferrara - Dr. Mateja Durovic, City University Hong Kong - Dr. Joasia Luzak, University of Exeter - Prof. Dr. Vanessa Mak, Tilburg University - Prof. Dr. Jorge Morais Carvalho, Universidade Nova de Lisboa - Dr. Kristin Nemeth, Universitat Innsbruck - Prof. Dr. Rupprecht Podszun, Heinrich-Heine- Universitdit Dusseldorf - Dr. Christine Riefa, Brunel University London EMail: editors@eucml.eu Editorial Consumers and the Data Economy On 10 January, the European Commission published another batch of communications, staff work- ing documents and consultation papers that are highly relevant for European consumers. Among them is Communication COM(2017) 9 final on Building a European Data Economy, accompanied by staff working document SWD(2017) 2 final and a public consultation running until 26 April. While clearly putting the stress on questions such as restrictions to the free flow of data by data localisation requirements, free access and transfer of data, the communication also includes issues of liability raised by the emerging Internet of Things (loT) and autonomous systems. This latter aspect had also been looked into by earlier SWD(2016) 110 final and is now being addressed by a parallel, and partly overlapping, consultation on the evaluation of the Product Liability Directive (PLD).2 The importance for consumers of a revision of liability schemes in the digital age, and in particular of product liability, is rather obvious. A majority of tangible consumer goods will soon be smart or connected, i. e. they will no longer be just tangible items covered by the PLD, but will rather come as packages of tangible item, plus embedded software, plus software on external locations, plus updates provided online, plus cloud services. In addition, network connectivity becomes crucial, and connected goods will interact with other goods or infrastructure. Defects may have their origin in components not covered by the PLD, such as in an update or cloud service, and they may affect the product at a point in time long after it was put into circulation. Also, the complexity of interactions may make it next to impossible for consumers to prove that there was a defect and that it caused the damage, not to speak of further layers of complexity added by self-learning autonomous devices. It is a pity, though, that the Commission seems to be looking at loT mainly as an issue of extra- contractual liability while largely ignoring the implications for contract law and even promoting, with Proposals COM(2015) 634 and 635 final, split contractual regimes, one for the tangible and one for the digital world.' Recent research has shown that loT calls for a rethinking of many issues in contract law, and likewise in property and copyright law.4 The link between consumer law and the data economy is less straightforward. Proposal COM(2015) 634 final for a Directive on the supply of digital content (DCD) had already introduced the notion of 1 https://ec.europa.eu/eusurvey/runner/European-Data-Economy-Consultation#. 2 https://ec.europa.eu/eusurvey/runner/LiabilityDefectiveProductsPublicAuthoritiesResearchersLawFirms. 3 For further references see Wendehorst, in Schulze/Staudenmayer (eds) Digital Revolution: Challenges for Contract Law in Practice, 2016, 189 ff; and in Wendehorst/Zochling-Jud (eds) Fin neues Vertragsrecht fir den digitalen Binnenmarkt?, 2016, 45 ff. 4 Wendehorst, Verbraucherrelevante Problemstellungen zu Besitz- und Eigentumsverhaltnissen beim Internet der Dinge, report submitted to the German Ministry of Justice and for Consumer Protection, 2016, http://www.svr-verbraucherfragen.de/wp-content/uploads/ 2016/1 1/Wendehorst-Gutachten.pdf.

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