N E G L I G E N C E Negligence is a breach of duty to exercise a reasonable degree of care in the development or delivery of a product or services. When it comes to developing software, producers have a duty to take reasonable steps to ensure product quality and safety. This includes: o Testing a program properly o Fixing significant bugs o Warning users of limitations of the program o Providing adequate instruction on how to use the program o Providing adequate security against unauthorized uses of the software When the law refers to “ reasonable care ” and taking “ reasonable steps ” , it means taking the kind of care and steps that a prudent and rational person would take. Therefore, negligence is a finding of fault where the producer receives blame for: o A design error that ought to have been avoided, or o A manufacturing error that ought to have been detected and corrected, or o A failure to warn users of a known or foreseeable danger. A producer can also be liable for negligence by business partners or by the suppliers of component parts! In other words, a producer might be found negligent even when they perform no tortious wrong themselves, but because they chose the wrong partners. In essence, it means that a producer’s duty of care extends to taking reasonable care in selecting one’s partners and to taking reasonable steps to test and inspect supplied components. M I S R E P R E S E N T A T I O N Another type of tortious wrong is to misrepresent the capabilities of a software product, either in oral or written claims about the product. Courts will often grant some leeway to small exaggerations made in advertising. However, if a user suffers damages because they reasonably relied on Figure 2: PD10 Unit 06 Presentation 1 Slide 6 N E G L I G E N C E I S A B R E A C H O F D U T Y T O E X E R C I S E A R E A S O N A B L E D E G R E E O F C A R E I N T H E D E V E L O P M E N T O R D E L I V E R Y O F A P R O D U C T O R S E R V I C E S .
5 © University of Waterloo and others inaccurate/misleading claims about the software - claims that the producer knew or ought to have known were untrue - then the producer is liable. Note that in this case, there need not be a defect in the product. The tortuous wrong is that the software does not perform as effectively or efficiently as claimed and the user suffers as a result. Consider the representations that Snapchat made about its early offerings. Snapchat b ecame one of the world’s most popular messaging apps in the early 2010s . Its popularity, in large part, was because of claims that a user could send photos or videos that would “disappear forever” after an elapsed time period of the sender’s choosing. Unfortunately, Snapchat could not quite fulfill that promise. It turns out that recipients with fast fingers could take screenshots of their Snapchat messages. Alternatively, with some technical understanding, a recipient could find disappeared photos within their phone’s file system and copy them onto their computers. If one was not so technically savvy, a user could buy a third-party app that would allow them
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- Spring '19
- Contract Law, producer, Product liability