Software Update Errors and Their Legal Implications

It is repeatedly reported that software updates on smartphones or PCs have ‘fatal’ consequences for individual devices: The devices fail, attempts to restart fail; the device is temporarily – or in some cases even permanently – partially or completely unusable. The owner then faces the question: What to do?

Seller’s Liability for Material Defects

If the device is not older than 2 years, contrary to popular belief, there are still legally enforceable claims. While manufacturers’ terms of use typically only provide for a one-year ‘maintenance phase’ during which updates are still covered, the question arises: Are such conditions actually effective? German consumer law, and ultimately the fundamentally standardized consumer law throughout the EU, provides for a 2-year warranty period. This period may not be shortened for consumers, especially not through general terms and conditions. This means: The respective seller is liable for 2 years, starting from the transfer of risk, which usually occurs with the handover of the device.

If there are errors in software and further errors occur during an error update, the seller is ultimately responsible for this. The customer receives an ‘improvement’ that leads to a deterioration. After two attempts at rectification, the buyer can then withdraw from the purchase – at least if similar errors occur or if the pre-existing error is even exacerbated.

For the consumer as a buyer, this means that they can declare withdrawal from the purchase contract to the retailer after multiple attempts at error correction. If they have used the device properly and the device shows no excessive wear, especially damage, they can return the device – against a full refund of the purchase price!

Manufacturer’s Liability

The situation is more complex when the update was supposed to bring an improvement but leads to a deterioration.

In this case, the manufacturer has provided a service. However, a service should also not worsen the device. If one product, namely the new operating system, destroys or permanently damages another product, namely the smartphone, the resulting damages to the smartphone can indeed be considered compensable. The fact that manufacturers want to rely on a clause that impermissibly shortens the limitation period is then irrelevant. Rather, the manufacturer must be liable for damages for its product, the update. This at least results from the general duty to maintain safety.

Conclusion and Practical Tip

In practice, there may be many manufacturers and sellers who want to resolve such matters through silence and sitting it out. Here, persistence proves worthwhile. As long as consumers do not more effectively assert their rights and hold sellers or – where legally possible – manufacturers liable, non-response is of course economically much cheaper than a response.