CGA and device software updates

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surfisup1000

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# 249317 5-May-2019 19:54

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I think this story is behind the herald paywall so can't copy/paste. This is not an issue specific to apple watches, so did not put this in the apple section.

https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=12227664

Effectively anyone who bought a gen 1 apple watch might be able to get a full refund by lodging a disputes tribunal claim.

This is because apple have stopped rolling out software updates for the 1st gen apple watch, and the disputes tribunal ruled that this is a breach of the CGA.

In theory the same applies to other brands and devices.

Although, it seems that retailers can get around this in future sales, by being more upfront and not relying on the T&C small print.

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# 2231279 5-May-2019 20:25

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Cool article, ridiculous outcome.

1. Disputes tribunal cases are formed on their facts. They do not form precedents, and they do not need to follow the strict letter of the law. This is possibly why there is a stupid outcome, and is definitely why this wont go anywhere.

2. I agree with Noel Leeming (for once :)) that the Watch does still function without the latest OS update. It can still use the same old apps. It can't use SOME of the new apps that have come out, but it CAN use the apps that it first came with.

3. I don't know apple watches, but if I were to accept there were some minor loss of functionality (i.e. some new apps can't be downloaded), I cannot believe that such loss would be of a substantial character which is what would be required to reject the good and get a full refund per the CGA. The most he should be entitled to is compensation for loss of functionality.

4. Comparing a Smartwatch to a Traditional watch is ridiculous, when arguing how long it should last. That's like comparing my smart phone to my old fashioned land line (which lasted about 25 years). Smartwatches run on processors, with software and memory. No one reasonably expects their 5 year old smartwatch to keep up with current generation smartwatch which has a faster processor.

My prediction - this will go absolutely nowhere. NL will (or should) appeal. It's the principal.

Dunnersfella

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# 2231288 5-May-2019 20:54

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Agreed.

For all of sxz's points above.

Technology is moving faster and faster and our legislation simply isn't... look at the governments ability to understand net neutrality / censorship etc.

My Gen.1 Apple watch is sitting on its charging stand going un-used, but that's because I have come to the realisation that I just don't like wearing watches anymore, not because I can't put the latest apps / OS on it.

Here's the question...

If you buy a games console today, but then, 5 yeats later, Sony / Microsoft / whoever can no longer support Spotify on their console due to software issues... do you have a claim under CGA? Even though pretty much no one buys a games console to stream Spotify... yet it's permissible that someone could try and get a free upgrade to a new console via CGA for this reason?

Wellingtondave

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# 2231335 5-May-2019 22:31

It's an interesting debate to have. Should there be a limit on the timeframe? We have fantastic consumer protection if you're willing to fight for it, it's a pity most retailers are not fined more for breaching it.

If Apple or whomever (let's call Google / Alphabet on this too) said, all devices manufactured with the seal of approval will get X years of feature updates plus Y years of security updates, would anyone be satisfied anyway?

dejadeadnz

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# 2231337 5-May-2019 22:35

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My prediction - this will go absolutely nowhere. NL will (or should) appeal. It's the principal.

Sigh. I really wish people will stop making legal statements unless they understand the law. Disputes Tribunal decisions are not appealable on the facts - s 50 of the Disputes Tribunal Act has all the information that one needs. There is a gigantic body of case law that says people who try to make a collateral attack on the DT's ruling on account of some imaginary "unfairness" that goes back to the merits of the decision by the Tribunal cannot succeed. The sole ground of appeal is procedural unfairness on the part of the referee that led to the appellant being prejudiced. And most appeals against DT decisions fail for the reason that the legislature intended DT decisions to be more or less final.

I don't have a Herald premium subscription but just from the preview, I already have reasons to doubt the accuracy of the article. The muppet who wrote it implied that Noel Leeming's lawyer claimed at the DT that there was no breach of the CGA. Well, guess what? Lawyers are explicitly barred from appearing on behalf of anybody at the DT, except when the lawyer is him or herself a party to the proceedings.

By the way, in the context you intended to use it, the correct word is "principle". I'd suggest that unless anyone has read the actual DT decision and/or has heard the arguments (no one could have - DT proceedings are private), the story might be a bit different from what the Herald wrote.

mattwnz

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# 2231341 6-May-2019 00:58

sxz:

Cool article, ridiculous outcome.

4. Comparing a Smartwatch to a Traditional watch is ridiculous, when arguing how long it should last. That's like comparing my smart phone to my old fashioned land line (which lasted about 25 years). Smartwatches run on processors, with software and memory. No one reasonably expects their 5 year old smartwatch to keep up with current generation smartwatch which has a faster processor.

I haven't read it, as it is behind a paywall, so not sure of the details. However the title does say it cost $1250, which is a heck of a lot of money and must have been one of the top of the range models. It looks like they expected something of that sort of price to be supported for more than 3 years. I guess it also depends when it was purchased, and how close the purchase date, was to the date it ceased being sold, and then how long after that, it ceased being supported by some apps. I do have an apple watch, which still gets software updates, but I do worry about what happens to the apps on it, when my iphone updates it's apps, but the watch version of the app isn't compatible with an older watch os version. Will the app then disappear from the apple watch, when it syncs with the watch or will it be left on the watch with an older version? The iphone 5s which is from 2013 (5-6 years old) still gets software and ios updates, so can run most of the latest apps. The thing about apple watches is that they are really all that fast in terms of processor speed to begin with, when comparing with iphones, so they are always running far lighter weight apps on them anyway.

Lias

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# 2231343 6-May-2019 03:37

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Three years is not an acceptable lifespan for a smartwatch, the Disputes Tribunal has ruled in a decision that could have repercussions for shoppers and retailers alike.

Auckland barrister Timothy McMichael bought a first-generation Apple Watch from Noel Leeming in 2015 only to find, just three years later, that it could not handle Apple's latest WatchOS software upgrade.

In the first of two hearings, Noel Leeming's lawyer argued that the Apple Watch was still fit for purpose because it could still function as well as the day he bought it.

McMichael scoffed to the Herald that he did not want his Apple Watch just to tell the time. It should be able to accept Apple cope with software upgrades for five or six years, including the recent AppleWatch5OS - which includes new workout and entertainment app features, among other enhancements.

He drew on software compatibility timeframes for Apple iPhones and iPads to make his case, which was bolstered by a letter of evidence supplied by Consumer NZ head of testing Dr Paul Smith.

Luke ordered Noel Leeming to reimburse McMichael for the full cost of his Apple Watch - or $1249.99 by May 7.

Text of the article

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empacher48

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# 2231344 6-May-2019 06:00

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After reading the article it just sounds like someone who knows the system stirring the pot for his own glory and screw everyone else.

I’ll be all for Noel Leeming and or Apple to step in here and appeal the ruling.

Dial111

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# 2231348 6-May-2019 06:40

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That’s the way I read it too.

empacher48

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# 2231353 6-May-2019 07:18

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To those who say you can’t appeal a dispute tribunal decision. Does this mean my trip to the District Court last year to appeal a decision was illegal?

My lawyer didn’t think so, the judge didn’t think so and the fact the appeal did over turn the Dispute Tribunal decision, must mean that you can?

nathan

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# 2231354 6-May-2019 07:20

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There is only 1 ground for appealing a Tribunal decision. This is that the referee ran the hearing (or a Tribunal investigator carried out an inquiry) in a way that was unfair and which had an effect on the result.

sbiddle

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# 2231355 6-May-2019 07:23

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Much like the successful CGA claim against PB Tech for data loss because somebody didn't back up their HDD, these two cases set extremely worrying precedents (yes I know they technically don't set any case law but in reality they are setting a precedent).

The CGA is both a great and a very poor piece of legislation - and people exploiting it like this is simply going to drive up costs for everybody. How long before people start taking back 3yr old phones because they don't get an Android update even though most manufacturers and Google only commit to 2 years of updates?

freitasm

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# 2231356 6-May-2019 07:28

Please do not post full text of NZ Herald Paywall articles.

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dejadeadnz

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# 2231363 6-May-2019 08:12

empacher48: To those who say you can’t appeal a dispute tribunal decision. Does this mean my trip to the District Court last year to appeal a decision was illegal?

My lawyer didn’t think so, the judge didn’t think so and the fact the appeal did over turn the Dispute Tribunal decision, must mean that you can?

No one said you can’t appeal. What you can’t do is appeal solely on the basis that you don’t like the DT’s decision, i.e. seeking a per we review of the merits of the decision in the absence of procedural unfairness. Now the odd District Court judge decides that they don’t need to account for the words of the statute here and there but I wouldn’t spend money and bank on that.

dejadeadnz

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# 2231366 6-May-2019 08:21

nathan: There is only 1 ground for appealing a Tribunal decision. This is that the referee ran the hearing (or a Tribunal investigator carried out an inquiry) in a way that was unfair and which had an effect on the result.

Why worry about facts? And good on you for reading the legislation.

As for whoever it was that ranted how the CGA might lead to terrible outcomes because people might try on returning 3 year old phones when industry standards typically provide for 2 year updates, the law on what is reasonable should never (and the CGA has never been) decided solely by what manufacturers choose to do. There are manufacturers of 5k OLED TVs who, for example, think that the buyer is entitled only to a 1 year warranty.

Moreover, we have had recent evidence of phones (e.g. Huawei) receiving no updates after a year and phones less than two years old that take an age before receiving critical security updates. These are things within the power of phones-selling telcos and manufacturers to change. If someone wants to challenge them on it, I say good on them.

tehgerbil

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# 2231368 6-May-2019 08:26

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What. The. Heck. So he's not losing any features, or the original functionality of the device is not impeded in anyway.

He is complaining it did not get software enhancements 3 years after release.

This is NOT what the CGA should be used for, it should be used for the device not being fit for the original purpose, not some future enhancements that may or may not ever be released!!!

Man, I agree with the other sentiment in this thread, he sounds like a piece of work with too much money and time and wanted to be a self entitled pain in the arse.

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