EMF, Our Health and the Law

Outwardly, to all intents and purposes, the current state of research into the effects of electromagnetic radiation, be it low, middle or high frequency, hangs in the balance.

One man’s word against another’s……outwardly, at least.

A common response when I voice my concerns over EMF and the possible health effects (… and I always say “possible”) is “Well, if it were dangerous, the government or someone else would have told us, wouldn’t they”. Well, the news is that governments around the world are beginning to say something on the matter but quietly. Those not actively looking for this information are unlikely to have noticed as it doesn’t get much media attention. The fact that France and Belgium banned Wi-Fi in kindergartens in 2014 and 2016 respectively, wasn’t largely reported in the media nor the fact that France went on to ban mobile phones in schools for children up to the age of 15 in 2017. Other governments, including those of Russia, Israel, India, Canada, Turkey, Cyprus, Austria and the UK, have taken or are considering similar actions.

So how else can we, the general public, assess the possible danger?

The Communications Industry’s Self-Defence

Well, one obvious source of information is the legal system in all its possible guises.

For instance, starting with the mobile phone providers/manufacturers themselves: the User Agreement for a modern mobile phone will include a clause specifying that by using their equipment you agree not to be involved in any Class Action Lawsuit against the service provider/manufacturer for any reason associated with the use of the phone and, in fact, agree to restrict yourself to “arbitration” in a small claims court should the need arise (details in “Arbitration Agreement” section). You have the option to opt-out of this agreement but you must exercise that right within 30 days. Hmmmmm. Class Actions are useful and cost-effective way for groups of people to act against large corporations capable of buying the best legal and scientific advice available. Additionally, a Class Action may help to bolster legal precedent against the behaviour of a class of which the defendant is a member, ie the communication industry in this case. The option left open for the user, should it prove necessary, is to “go it alone” at their own risk, a big disincentive if ever there was one.

https://www.cnet.com/news/why-you-cant-sue-your-wireless-carrier-in-a-class-action/

https://www.samsung.com/us/Legal/Phone-HSGuide/#Section%201%20:%20Arbitration%20Agreement

Also to be found in the User Agreement is the minimum distance from the “body” at which the phone should be held. This varies between 15 and 25mm. Although some people now hold their Smartphone away from themselves, using the phone on loudspeaker, so to say, this is not generally the rule. More commonly, people just hold it against their ear, right? In a court of law, perhaps a lawyer would argue that merely by holding the phone in the hand, the user has invalidated any claim of damages because he/she hasn’t observed the minimum distance to the hand, as the User Agreement specifies “body” not “ear” or “head”. Of course, its obvious that they mean “head” when they say “body”, isn’t it, but if push came to shove and it ended up in court……….would a self-respecting legal eagle use that fact in his defence for a corporate client?

The People vs. Communications Industry

In America, some courageous people, several of whom were former telecommunications employees, have taken the phone companies to court with a largely, but perhaps unsurprising lack of success…….

Reynard v. NEC Corp. 1992 – Sued for personal injury: RF-induced cancer (Case dismissed on lack of “admissible” scientific evidence)

Kane v. Motorola 1994 – Sued for personal injury: RF-induced cancer (Case dismissed on lack of scientific evidence; settled out of court)

Verb v. Motorola 1996 – Sued for product liability & personal injury (Case dismissed on lack of scientific evidence)

Newman v. Motorola 2000 – Sued for product liability following RF-induced cancer (Case dismissed on lack of scientific evidence)

Murray v. Motorola 2001 – Sued for personal injury: RF-induced cancer (Partially dismissed, consolidated and still in process after eighteen years)

Pinney v. Nokia 2005 – Sued for product liability: insufficient warning/safety (Case was dismissed but ruled that similar suites could be allowed)

Farina v. Nokia 2008 – Sued for product liability: breach of warranty/insufficient safety (Case dismissed under pre-emption of Federal law against Pinney v. Nokia)

In the case of Murray v. Motorola, the District of Columbia Court of Appeals ruled in 2016 that a different evidentiary standard be applied, resulting in the majority of the plaintiffs’ existing scientific testimony becoming inadmissible. Theoretically, however, other expert witnesses may now be permitted. The case continues, even though Murray himself and several other co-plaintiffs are already dead.

In 1996 the Federal Telecommunications Act (FTA) was enacted to protect the development of the national telecommunications infrastructure and services and in the same timeframe the FCC introduced their RF Standard for equipment compliance. Since that date it is no longer possible to sue a phone company using State Law. Any such legal action must be heard by a Federal Court (Pre-emption) unless the user is suing in relation to pre-1996 mobile phone use, or that a cell phone is not compliant or in connection with marketing and advertising of cell phones with regard to safety. This introduces extra costs, delay and uncertainty resulting from processes in a higher court adhering to federal law, which can act as major disincentive for individuals.

In 2018 Britain saw its first lawsuit to be brought against a mobile phone manufacturer. A former UK salesman is suing Nokia for damages, alleging that his cancer is the result of heavy mobile phone use during the 1990s.

The Workers vs. Mobile Phones

Elsewhere in the world, others have successfully sued for industrial injury through the heavy use of a mobile phone but with legal action targeted at national occupational insurance authorities, most notably in Italy, where three workers have been awarded disability pensions by the National Institute for Insurance against Workplace Accidents and Occupational Disease (INAIL) on those grounds since 2012.

Equally significant, two French employees in 2015 and 2018 won similar awards from Social Security Affairs Courts TASS (tribunal des affaires de la sécurité sociale) on the grounds that their electro-hypersensitivity (EHS) was not accommodated by their employers causing them to be unfit for work.

And also in Spain in 2016, where the Tribunal Superior de Justicia de Madrid ruled that Miguel Cabellero, a telecoms engineer, was no longer able to act in his normal profession owing to his electro-hypersensitivity (EHS). However, they stopped short of declaring a permanent disability as he was capable of working in “white zones”, however, unfeasible that might be in today‘s society.

The State vs. Communications Industry

Elsewhere, local government institutes have found themselves inadvertently fighting the communications industry in court. Both the cities of San Francisco and Berkeley in California were sued by the CTIA (formerly the Cellular Telecommunications Industry Association, now The Wireless Association) in America after they attempted to implement laws calling for mandatory health warnings to be shown at the point of sale for mobile phones. San Francisco settled out of court in 2013 when the courts ruled in favour of the CTIA but not before the CTIA allegedly threatened to take a multi-million dollar exhibition away from the city. Berkeley, on the other hand, after careful observation of the courts recommendations and the word of law, won their case in 2017. Of particular note here, sadly, is that in order to get the general principle of the warning through the courts they had to remove a sentence highlighting the increased risk to children in particular. The CTIA have appealed, of course.

In January 2019, a court in Rome announced a ruling that the Italian government should implement a campaign to inform the public of the potential health risks arising from the use of mobile and cordless phones. The court ordered that the campaign should start by July 16th 2019; the government are not appealing the decision. 

The Insurance Industry vs. EMF

As early as 1999, nervousness about the possible risks of mobile phone radiation were starting to appear, with one underwriter  for Lloyds of London (John Fenn, from the underwriting group Sterling) refusing to insure mobile phone manufacturers against the possible health impact of their products.

https://www.theguardian.com/uk/1999/apr/11/sarahryle.theobserver

Early warnings of an impact to the insurance world were to be found in Elliot Whittier’s November 2008 newsletter which highlighted the increase in employer liability due to various factors involving mobile phone use by employees. In the case of an industrial accident, the employer is responsible for the harm caused to an employee if he/she was acting within the scope of his/her employment at the time of the accident. Thus a company becomes liable if the employee was using his company mobile phone at the time of the accident. Furthermore, a company can be liable for incidents arising from personal calls made from a company mobile phone. If employees haven’t been properly trained in the use of the company phone for business purposes and an accident arises, the company can be found negligent.

Health claims, it reported, are on the increase and although scientific evidence appears inconsistent, it acknowledged one Swedish study that found a 3.7 times higher the risk of certain forms of brain cancer for a particular group of mobile phone users in comparison to non-users.

In 2010 Lloyds were actively considering the impact of EMF to their business. Their report “Electro-magnetic Fields from Mobile Phones: Recent Developments” that year was largely dismissive of the scientific evidence at the time but did point out that there was some evidence of an increased risk of glioma and acoustic neuroma for mobile phone use greater than ten years. From the perspective of potential risk, they likened radio frequency radiation to asbestos, the cost of which, to UK insurers in the period 2009-2040, was likely to be 8 billion GBP:

“The comparison here with EMF is obvious – if it is proven to cause cancer, then the injuries may not become clear until many years after the exposure due to similarly long latency periods. The danger with EMF is that, like asbestos, the exposure insurers face is underestimated and could grow exponentially and be with us for many years.”

In February, 2015, an underwriter for Lloyds of London (CFC Underwriting Ltd) went on to introduce Exclusion 32, which excludes any liability coverage for claims, “…..directly or indirectly arising out of, resulting from or contributed to by electromagnetic fields, electromagnetic radiation, electromagnetism, radio waves or noise.” However, this exclusion was only applied to insurance for architects and engineers in specific circumstances in Canada at the time.

The UK agent for Lloyd’s stated, “The Electromagnetic Fields Exclusion (Exclusion 32) is a General Insurance Exclusion and is applied across the market as standard. The purpose of the exclusion is to exclude cover for illnesses caused by continuous long-term non-ionizing radiation exposure i.e. through mobile phone usage.”

Two years after the International Agency for Research on Cancer (IARC) declared radio frequency (RF) radiation to be “possibly carcinogenic” Swiss Re’s SONAR Report 2013 warned of the “Unforeseen consequences of electromagnetic fields “as an emerging risk with potentially high impact over the coming 10 years. The report highlighted…

“Furthermore, a recent ruling by an Italian court suggested a link between mobile phone radiation and human health impairment.”

And went onto say:

“If a direct link between EMF and human health problems were established, it would open doors for new claims and could ultimately lead to large losses under product liability covers.”

Reading Between the Lines

So what can we deduce from all of this?

The courts in three European countries have acknowledged the existence of electro- hypersensitivity (EHS) as a source of industrial injury and a link between heavy mobile phone use and cancer (acoustic neuroma) and have awarded disability pensions for both as a result.

Insurance companies seem to be nervous about the possible health effects of EMF.

Some government authorities believe that a more precautionary approach is required and are prepared to go to court against the telecommunications industry to enforce it.

The telecommunications industry appears to have implemented damage limitation measures to prevent consumers from taking more effective legal action against them where possible health effects from mobile phone use are concerned.

We must keep reading between the electromagnetic field lines.

Copyright – Mark Binet (BSc. Hons. MIEEE), Isar Energetics 2019

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