Liability is a legal, ambiguous concept and has a different meaning depending on the area of law. In general, liability can be understood as the legal “having to answer” for the fact that one’s own or another person’s mistake, or even an event that occurred without such a mistake, caused damage to another person.1 In general, a distinction can be made between civil liability, criminal liability and public law liability. In the context of mhealth issues, liability usually only means civil liability.
The Civil law has a differentiated liability system that provides a solution for all constellations in which private individuals have suffered damage. Essentially, three types of liability law can be distinguished. (1) The first is contractual liability for damages due to breaches of duty within the contractual relationship.2 (2) Secondly, tortious liability must be considered for damage caused to a person or his or her property by the action of a third party or at the instigation of a third party.3 Also, there is strict liability for permitted dangers, such as liability in road traffic, liability for products or liability for pets.4
In the context of mHealth, for example, the liability of app manufacturers for faulty results of health apps (product liability) or also the liability of doctors when using apps in the treatment relationship would be conceivable.
A uniform European liability law does not yet exist.
1 Wagner in Münchener Kommentar zum BGB, 8. Auflage 2020, Vorbemerkung zu § 823 BGB, Rn. 43,44.
3 Wagner in Münchener Kommentar zum BGB, 8. Auflage 2020, § 823, Rn. 64.
4 Teichmann in Jauernig, Kommentar zum BGB, 18. Auflage 2021, § 823, Vormerkungen, Rn. 10,11.