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Software would count as a product in England and Wales

A consumer injured by a product has one route to compensation that does not require proving that anyone was careless. In England and Wales that route is Part 1 of the Consumer Protection Act 1987. It has never clearly covered software. On 8 October 2026 the Law Commission opened a public consultation that would change that, and the consultation closes on 14 January 2027.

The regime under review

Part 1 of the 1987 Act sets up a strict liability regime. Under it a consumer can claim compensation for personal injury or certain property damage caused by a defective product. The claimant does not have to prove fault on the part of the defendant. The Law Commission says the Act was built for damage caused by tangible products and that this focus is no longer appropriate. It adds that reported case law under the Act is limited. Claimants may face significant evidential hurdles in proving defect and causation in complex technical cases. The project is sponsored by the Department for Business, Innovation, Science and Trade. Its terms of reference were published on 8 December 2025.

What would count as a product

The central proposal is a wider definition of a product. Software and AI systems would be products in their own right, whether supplied on a device, embedded in one, downloaded from the internet or accessed remotely. The design components and features of social media and other online platforms would also fall within scope, including recommendation systems such as algorithms. The definition of supply would widen as well, so that a product counts as supplied however it is delivered, including by download. New categories of potentially liable person would be added, among them fulfilment service providers, online marketplaces and UK authorised representatives.

Proving that a product was defective

The paper proposes a clearer and more structured framework for deciding what counts as a defect. It rests on a set of principles for the courts and an updated list of relevant circumstances. Where a claimant faces exceptional difficulty in obtaining evidence, a rebuttable presumption of defect would apply. The defect is then taken as established unless the defendant displaces it. A defendant could instead accept the presumption, and the court would then award partial compensation under a new risk-sharing mechanism. The proposals would also allow compensation for the destruction and corruption of data. A new framework would govern claims for psychiatric harm. It reaches people who develop psychiatric illness after witnessing harm to a loved one.

Defences and deadlines

Existing defences would be kept and updated for digital products. They include the development risks defence. Under it a producer is not liable for a defect that could not have been discovered when the product was supplied, or when it later became defective. The long-stop period, the final deadline after which a claim can no longer be brought, would reset after a producer substantially modifies a product. It would run to 25 years in cases of latent harm.

The European Union got there first

Directive (EU) 2024/2853 of 23 October 2024 repeals Council Directive 85/374/EEC, the old product liability directive. Article 4(1) defines a product as all movables, and says it includes electricity, digital manufacturing files, raw materials and software. Article 2(2) carves out free and open-source software that is developed or supplied outside the course of a commercial activity. Article 10(2) presumes defectiveness where the defendant fails to disclose relevant evidence, or where the claimant shows that the product breached mandatory product safety requirements. Member States must bring the directive into force by 9 December 2026. It applies to products placed on the market or put into service after that date.

What happens next

Professor Solène Rowan, Commissioner for Commercial and Common Law, said of the proposals: “As technology evolves, the law must evolve with it.” The Law Commission will weigh the responses and then publish a final report with recommendations to Parliament, which it expects in late 2027. Until 14 January 2027 the questions are still open, and firms that build or sell software in England and Wales can answer them.

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