Man­da­to­ry updates? Sta­te of the art for software

The pace of tech­no­lo­gi­cal deve­lo­p­ment con­ti­nues unab­a­ted, due abo­ve all to trend towards digi­tiza­ti­on. For this reason, laws and con­trac­tu­al agree­ments which make refe­rence to tech­ni­cal stan­dards should typi­cal­ly be draf­ted in an open-ended man­ner so as to enable them to keep pace with recent tech­no­lo­gi­cal deve­lo­p­ments (as noted e.g. by the Fede­ral Con­sti­tu­tio­nal Court in its famous Kal­kar Order of 8 August 1978, Case No. 2 BvL 8/77) (only in Ger­man). Ins­tead of requi­ring a spe­ci­fic tech­ni­cal con­di­ti­on, laws and con­tracts will the­r­e­fo­re typi­cal­ly include an abs­tract desi­gna­ti­on of the neces­sa­ry or desi­ra­ble tech­ni­cal condition.

The three tech­ni­cal stan­dards and their legal significance

Three dif­fe­rent stan­dards have emer­ged for the abs­tract desi­gna­ti­on of tech­ni­cal requirements:

  • The first is “gene­ral­ly accept­ed tech­ni­cal rules.” This refers to tech­ni­cal deter­mi­na­ti­ons which are view­ed as a reflec­tion of the sta­te of tech­ni­cal design by a majo­ri­ty of peo­p­le in the field (such as DIN stan­dards or VDI gui­de­lines). If “gene­ral­ly accept­ed tech­ni­cal rules” are the appli­ca­ble stan­dard, the­re is typi­cal­ly an expec­ta­ti­on that the pro­duct meets cer­tain mini­mum requirements.
  • One step hig­her is “sta­te of the art,” which refers to estab­lished fin­dings from sci­ence, engi­nee­ring and expe­ri­ence. If the start of the art is requi­red, it is not neces­sa­ry to use the best available tech­no­lo­gy, only one which has under­go­ne a cer­tain amount of test­ing. But unli­ke “gene­ral­ly accept­ed tech­ni­cal rules,” it is not neces­sa­ry for the solu­ti­on to be accept­ed by a majo­ri­ty of peo­p­le in the field or for it to be spe­ci­fied in tech­ni­cal stan­dards. “Sta­te of the art” is requi­red e.g. in data pro­tec­tion law (cf. Artic­le 32(1) of the GDPR) (only in Ger­man) as well as in medi­cal devices law (cf. MDR, Annex 1, No. 1) und in many other sta­tu­tes. “Sta­te of the art” is also fre­quent­ly reli­ed upon for the iden­ti­fi­ca­ti­on of mate­ri­al defects and it will be the appli­ca­ble stan­dard in con­nec­tion with imple­men­ta­ti­on of the Digi­tal Con­tent Direc­ti­ve.
  • Ano­ther step abo­ve is the “sta­te of sci­ence and engi­nee­ring,” which requi­res the best pos­si­ble tech­ni­cal per­for­mance, and which is used e.g. in pro­duct lia­bi­li­ty law  (cf. Fede­ral Supre­me Court, Judgment of 16 June 2009, Case No. VI ZR 107/08) (only in German).

Sta­te of the art in software

Whe­ther manu­fac­tu­r­ers are requi­red to adhe­re to the “sta­te of the art” or a dif­fe­rent tech­ni­cal stan­dard depends on which laws app­ly as well as the exis­ting con­trac­tu­al agree­ments. For this reason, manu­fac­tu­r­ers of soft­ware and pro­ducts which con­tain soft­ware should careful­ly exami­ne their sta­tu­to­ry and con­trac­tu­al obli­ga­ti­ons in each case. The tech­ni­cal rules descri­bed abo­ve must be fol­lo­wed depen­ding on the appli­ca­ble tech­ni­cal stan­dard. This is gene­ral­ly true for soft­ware in the same way as for phy­si­cal products.

When is the assess­ment made?

Of cour­se, the ques­ti­on as to whe­ther a pro­duct or soft­ware adhe­res to the sta­te of the art depends on when the assess­ment is made. This, in turn, depends on the appli­ca­ble laws and con­trac­tu­al agree­ments. In data pro­tec­tion law, for exam­p­le, sta­te of the art must be ensu­red throug­hout the enti­re pro­ces­sing peri­od, so that the defi­ni­ti­on of sta­te of the art must be con­ti­nu­al­ly adapt­ed based on a risk assessment.

In the law gover­ning con­tracts of sale, the situa­ti­on is dif­fe­rent. In this case, the ques­ti­on as to whe­ther a defect exists is deter­mi­ned at the time of pas­sa­ge of risk. When soft­ware is invol­ved, this rai­ses a fasci­na­ting ques­ti­on, and one which has yet to be ful­ly cla­ri­fied: is soft­ware con­side­red to be defec­ti­ve only when a weak point is dis­co­ver­ed, or is the soft­ware defec­ti­ve if the neces­sa­ry con­di­ti­ons are pre­sent for the emer­gence of a weak point.

Our view is that a defect can only exist upon pas­sa­ge of risk if the soft­ware’s weak point was fore­seeable at that time. This should be the case if the weak point is not attri­bu­ta­ble to new attack tech­ni­ques or pre­vious­ly unknown tech­ni­cal methods. Con­trac­tu­al agree­ments fre­quent­ly spe­ci­fy a duty to ensu­re sta­te of the art on a con­ti­nuous basis over the enti­re term of the con­tract or the enti­re useful life of the pro­duct or soft­ware in question.

When are updates necessary?

Manu­fac­tu­r­ers are requi­red to pro­vi­de soft­ware updates when­ever they have a sta­tu­to­ry or con­trac­tu­al duty to do so. Whe­ther or not this is the case depends on the appli­ca­ble laws and con­trac­tu­al agree­ments, like the appli­ca­ble date for deter­mi­ning the sta­te of the art. While the decisi­ve peri­od in data pro­tec­tion law is always the peri­od of pro­ces­sing, the decisi­ve peri­od for iden­ti­fy­ing whe­ther a defect exists in the law gover­ning con­tracts of sale is gene­ral­ly the con­trac­tu­al war­ran­ty peri­od. Howe­ver, war­ran­ty claims in con­tracts of sale do not estab­lish a cla­im against the manu­fac­tu­rer to recei­ve updates, due to the fact that war­ran­ty for defects can gene­ral­ly be pro­vi­ded by other means. Whe­ther the manu­fac­tu­rer has an ancil­la­ry con­trac­tu­al duty to pro­vi­de updates has been a sub­ject of con­stant dis­cus­sion. By Judgment of 16 Octo­ber 1997 (Case No. 83 O 26–97) (only in Ger­man), the Dis­trict Court of Colo­gne ruled that the manu­fac­tu­rer is requi­red to pro­vi­de updates, for a fee, over the enti­re life cycle of the device. But the­se prin­ci­ples will be alte­red by imple­men­ta­ti­on of the Digi­tal Con­tent Direc­ti­ve. For exam­p­le, the Fede­ral Minis­try of Jus­ti­ce is plan­ning to enact a new sta­tu­te, § 327 f(1) of the Civil Code, under which updates for digi­tal pro­ducts would have to be sup­pli­ed for a cer­tain peri­od of time. Under this sta­tu­te, updates would have to be pro­vi­ded by the manu­fac­tu­rer for as long as the con­su­mer “may expect, given the type and pur­po­se of the digi­tal pro­duct and taking into account the cir­cum­s­tances and the natu­re of the con­tract.” Unli­ke in con­trac­tu­al law, a duty to pro­vi­de updates does not exist in pro­duct lia­bi­li­ty law, at least not for now.

Prac­ti­cal recommendation

The ques­ti­on as to which tech­ni­cal stan­dard appli­es for soft­ware is legal­ly com­plex, as is the ques­ti­on as to whe­ther and to what ext­ent updates need to be pro­vi­ded. The­se ques­ti­ons may beco­me even more com­plex in the coming years with the addi­ti­on of new legal requi­re­ments with respect to IT secu­ri­ty. Accor­din­gly, soft­ware manu­fac­tu­r­ers would be well-advised to ful­ly cla­ri­fy at an ear­ly stage which sta­tu­to­ry and con­trac­tu­al requi­re­ments their soft­ware must adhe­re to. It is also neces­sa­ry to estab­lish con­ti­nuous moni­to­ring of the legal requi­re­ments and of their soft­ware’s IT secu­ri­ty properties.

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