What about if Lewis accidentally damages one of the cars as a result of an issue with the headset or the content? Would liability rest with the manufacturer or the developer of the content?

The first point to note is that, under UK law, product safety is a serious issue and is covered by a number of laws (both statutory and common):

The Consumer Protection Act 1987 imposes strict liability (meaning there is no need to prove fault) for damage caused by a defective product. Consumers are able to claim against the original producer of the product, the entity which has branded (or “held himself out to be the producer of”) the product, or the importer of the product. This is all well and good when we’re talking about tangible products (such as a spatial computing  technology headset). However, it’s important to remember that, infamously, the CPA is unclear about the relationship between its provisions and digital content - the CPA does not expressly mention digital content and is, therefore, generally taken not to apply to such content; however, where digital content is supplied as part of a tangible object (such as a headset), it is unclear whether this would fall within the scope of the CPA.

According to the CPA, a product will be classed as “defective” if “the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury” (section 3, CPA 1987). For the purposes of determining whether a product is defective, certain factors (such as “the manner in which, and purposes for which, the product has been marketed” (including its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product) and “what might reasonably be expected to be done with or in relation to the product”) will be considered.

The General Product Safety Regulations 2005 require products to be safe before they are placed on the market. For the purposes of the Regulations, a “safe product” is defined as “a product which, under normal or reasonably foreseeable conditions of use including duration and, where applicable, putting into service, installation and maintenance requirements, does not present any risk or only the minimum risks compatible with the product's use, considered to be acceptable and consistent with a high level of protection for the safety and health of persons” (regulation 2, GPSR 2005), subject to various factors (such as the characteristics of the product, any warnings for the product, the category of consumers at risk when using the product, etc).

The manufacturer of a product may also be liable in tort if it can be proved that they have been negligent. To succeed, a claimant must prove that:

• the manufacturer owed them a duty of care;
• the manufacturer breached that duty of care;
• the breach caused damage to the claimant; and
• the manufacturer could have reasonably foreseen the damage.

It’s important to remember that negligence claims can be difficult to prove given that a chain of causation must be established.

Based on the patchwork of laws set out above, it’s clear that manufacturers of headsets and creators of content within the immersive worlds displayed on those headsets could be liable if their products are deemed to be unsafe and cause harm as a result. The extent of such liability will obviously be context-specific – for example, if Lewis is distracted by content while wearing a headset and walks into a pothole, it feels unlikely that the manufacturer of that headset could be found liable for any injury suffered by Lewis (assuming that the headset itself was otherwise functioning correctly and displayed suitable warnings, etc). However, faulty headsets or inaccurate content could result in complex liability claims which will, no doubt, become additionally complex as manufacturers and content creators inevitably attempt to disclaim liability to the fullest extent possible in their terms and conditions. 

It’s also worth bearing in mind that it’s not just physical injury of which Lewis would need to be mindful when using spatial computing technology. In recent years, the UK government has highlighted the importance of cyber security, online safety, and content regulation with the introduction of the Online Safety Act 2023 and the Product Security and Telecommunications Infrastructure 2022. In simplistic terms, the latter applies to “smart” products and introduces additional security requirements for such products; the former aims to protect users of online services from accessing harmful or illegal content.

Finally, it’s also important to remember that we’ve based our case study on Lewis simply using a headset for fun and tripping into a fictional pothole. However, the use cases for this technology continue to expand – from glasses which show real-time subtitles to deaf people, to headsets which train employees to identify problems with, and fix, complex machinery, to integrations between headsets and autonomous vehicles – so too will the gravity of any harm resulting from problems with spatial computing technology.

Take a look at our data article and IP article for further discussions about the legal issues involved in spatial computing tech.