A 1999 UK legal view
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HALSEY MEYER HIGGINS SOLICITORS     (Euro legal opinion added below 05-11-00)

56 BUCKINGHAM GATE * WESTMINSTER LONDON SWIE 6AE TELEPHONE: 0171 828 8772 DX2381 VICTORIA 1 FAX: 0171 828 8714

MOBILE PHONES - MOBILE NETWORKS - SAFETY

1. More than a year ago on 6th March 1998, the Irish Minister of Public Enterprise, stated this is an issue which will grow and grow and will not go away. Subsequent events have proved her correct in that public concern worldwide is growing and not diminishing as the public grows more conversant with possible effects from mobile phone usage.

2. The issue breaks down into two different parts, firstly the safety of using mobiles themselves and secondly and perhaps long-term more importantly, the question of living close to a ground based Telecommunications Mast and Base Station.

3. On the issue of mobiles themselves, it is of course the users choice as to whether they have a mobile in the first place and then secondly how much they choose to use it. However that choice or consent is entitled to be a properly informed choice or consent. Recent disclosures seem to show that prolonged use of a mobile may not be that safe despite assurances made by the Industry over the last ten years to that effect. On 24th May, Dr George Carlo of the Industrys established WTR in America stated that the Industrys continuing statements that there was no conclusive evidence against mobiles was not a realistic position to take.

4. The main public concern however does not relate to the use of the mobile phones themselves where there is that choice. The problem as perceived by large sections of the public and particularly communities whose privacy has been invaded by the erection of a Mast and Ground Base Station is whether long-term chronic exposure to the low intensity radiation from such facilities is indeed now safe. Bearing in mind that the assurances about the safety of the mobiles themselves when used close to the brain seem now to be somewhat suspect, the question arises as to whether similar assurances relating to the safety of living close to a Ground Based Station and Mast are also realistic. The problem is that such research as has been carried out relates to the mobiles themselves. Little or no published research has been carried out relating to chronic long-term exposure month after month, year after year to living close to a Telecoms Mast.

5. The only indicators, which might tend to provide some evidence relate to other types of masts, i.e. TV Masts, short-wave radio Masts and radar installations. There the North Sydney Australia study showed a significant statistical increase in cancer cases within the triangle of those three Masts in North Sydney. Here the Sutton Coldfield BBC Mast study showed increased radiation levels around the Mast and its near vicinity. In Switzerland, the Schwarzenberg short-wave Mast was thought to be having adverse health effects on the local community for years. When a study was carried out in the mid 1990s by the University of Beme, it was found that the emissions from that mast did have an effect on the people in the vicinity.

This was discovered because during the period of the study there was a significant drop in the symptoms in many people over a three day period within that prolonged study. It was then discovered, which was not known at the time, that the transmitter had failed for those three days and there were no short-wave transmissions. The Swiss government has now closed the Mast down. Incidentally, the Swiss health and environmental officials have proposed strict rules for public exposures from new sources of radio frequency and microwave radiation. If the ordinance is adopted, which appears likely, Switzerland will have the most stringent exposure levels in the world -- based on the precautionary principle -- guideline levels much lower than those recommended by the NRPB.

There is also the evidence of the Soviets irradiation of the US Embassy in Moscow, which produced serious adverse health effects.

There is the Skrunda study in Finland with regard to populations living many kilometres behind the radar installation and those living a similar distance in front of the radar installation. There the health conditions of those living in front of that installation were found to be markedly different, and this has been put down to the effect of the radar transmissions.

Finally there was recently a study funded by the Bavarian State Government in Germany following reported adverse health effects in dairy cattle only after a Telecoms Mast had been erected. It was discovered after a period that the cause of the significant drop in the yield of that herd of cattle and Extraordinary Behaviour Disorders in some of the cows related to the microwave transmissions from that Mast. When the cattle was moved away from its vicinity after a period the milk yield and the behaviour of that herd was totally restored to normal.

However when the cattle were returned to the mast environs their symptoms returned. This was not an isolated incident -- see Loscher and Kas of Universities of Hannover Veterinary School and University of the German Army in Munich 1998.

6. None of these situations appears to relate to thermal heating of any kind. These effects could not be ascribed to thermal heating because the distances involved are far too great. However, they may relate to biological effects from low intensity microwave radiation over prolonged periods. However, the research has not been carried out into cumulative effects. It is necessary to ask why? Perhaps in the light of the Industrys approach over the years to the mobiles themselves, the answer may be fairly obvious?

In the absence of conclusive evidence that mobiles themselves and mobile networks are safe -- something the scientists agreed they can not prove without substantial additional properly structured research -- it is necessary now to use common sense and prudent avoidance. The European Treaties relating to the Environment described common sense as the Precautionary Principle and preventative action -- see Article 130r.

7. What does prudent avoidance, preventative action, precautionary approach mean in practice? No-one wants to prevent the advance of telecommunications. It is a great new boon to living when used sensibly. However, common sense needs to prevail over the economics of the Industrys proliferation. There is no need these days to place Telecommunications Masts and Base Stations too close to permanently occupied residences and childrens schools. The only reason that Masts are placed too close, i.e. the near side rather than the far side of a farmers field is because it is cheaper. Cheaper because it is nearer the electricity supply, cheaper because it is easier for maintenance and access from an adjoining road or track.

However, the requirements are not that spot specific and there is absolutely no reason why a properly erected and located Mast should be closer than a minimum of 200 to 250 metres from any inhabited property, using a ground based Mast and Ground Based Station. Unfortunately the Industry ignores the obvious because it is easier and cheaper, and usually regrettably there is no-one to take them on or to challenge their planning application with the Planning Authorities.

8 Recently groups all over the United Kingdom, including Scotland and Northern Ireland have been successful in showing planning authorities that there is a better way to interpret the outmoded Telecommunications Legislation (1984) the outmoded planning circulars and the general ignorance of the fact that European Union Treaties advocated the Precautionary Principle (1993 Maastricht) to safeguard the public's health. Governments are there to be wise and knowledgeable. Governments are not there to be led by the Industry in pursuit of progress and financial gain at the expense of the public at large. Governments are there to be able to interpret properly scientific guidance or advice.

This proliferation of' Network Masts may turn out to be the next BSE for ignoring the warnings and acting without any common sense or prudent avoidance.

9 Reverting to the mobiles themselves, it is not common sense to put a mobile against your head for four or five hours a day at the incidence of your employer. In law, almost certainly that Employer is not providing a safe system of work. Equally, under the Consumer Protection Act it seems probable now that the manufacturers ought to display some form of health warning on their products to protect themselves from product liability claims -- and of course the users to whom then sell the huge number of phones from internal danger to enable such consumers to make an informed choice or consent. Possibly, (update 2000) in due course, it will be shown scientifically that living in too close proximity to a Mast is damaging to health, and possibly then there will under provisions of the Human Rights Act 1998 be legal remedies available, which allow people to seek compensation from the mobile phone network providers, and also against those who allow the Masts to be on their land.

This may include eventually even some Local Education Authorities who seem to be prepared to allow Masts to be erected regardless of possible risks to the children on school property for whom they are in loco parentis in return for an annual rental. This aspect is currently now under investigation by the Secretary of the State for Education following the meeting of the House of Commons Select Committee in June 1999 with Representatives of NRPB as mentioned below.

RECENT DEVELOPMENTS

Scotland

10 Currently parallel with the separate establishment of the Scottish Parliament in Edinburgh which now has responsibility for the majority of issues affecting people living in Scotland over one third of all Scottish Local Planning Authorities have now adopted or publicly committed themselves to adopting Precautionary Policies as a direct result of what they perceive to be inadequate official advice from Government Departments.

11. Local Authorities in Scotland have decided that there are too many unanswered questions to risk exposing the Public needlessly to levels of microwave radiation which could or may in time prove to be harmful to their health. By choosing to keep transmitter masts away from schools and residential areas local authorities are not doing anything radical, but merely following the Precautionary Approach advocated in the European Treaties, accepted by the UK Government in 1993 at Maastricht.

England and Wales

12 Similarly the influential Local Government Association (LGA) has now advised its member local authorities to adopt the Precautionary Approach on the basis that the decision making process of the Governments Advisory Body the NRPB, based upon waiting for `conclusive scientific evidence' before acting, is potentially flawed. On 12th August 1999 the Local Government Association accused the Government of `dithering' over the potential danger of cancer and radiation from mobile phone masts.

The LGA Planning Executive Chairman Stated "The Government must stop dithering and give councils some clear guidance to the threat posed by Radiation and the planning powers to keep the Public Safe -- especially vulnerable children and the elderly rather than wait two or three years until the research is finished".

These statements were made in August 1999 after the Government issued on 23rd July 1999 letters to the LGA and Members of Parliament which failed to help authorities make the right planning decisions or offer them guidance on where masts can be safely erected.

13 All this has come about after the senior representatives of the NRPB gave their evidence to the House of Commons Select Committee in June 1999 explaining firstly that the NRPB under its statutory legislation could only base its guidance and advice on `conclusive scientific evidence' as required by its Act of Parliament. and that accordingly until essential research had been carried out in their opinion the only "conclusive scientific proof" related to the properties of thermal heating on which their 1993 Safety Guidelines remained solely based.

Secondly however the representatives of the NRPB made it clear that until the freshly commissioned research produced some `conclusive scientific proof' that there were other effects apart from thermal heating, it was up to Politicians and Planners to exercise their `own' judgment.

14 On 1 st September 1 999 Belfast City Council ratified the 18th August 1999 Decision of its Development Committee that `no Transmitter Masts should be permitted on any Council Property', due firstly to the unknown risks from such masts and secondly because of `substantial public concern.

Similarly Wyre Borough Council in Lancashire recently decided that the proposed site for a mast and base station was unsuitable given its proximity to a nearby primary school and houses which were 190 metres and 40 metres away respectively" This refusal was based on public fears about possible health risks posed by microwave radiation. This follows the 1998 Court of Appeal decision finding that `genuine public fear and concern is a material planning consideration, even if that fear is irrational and not based upon evidence -- see Newport BC v Secretary of State for Wales (1998) JPL 377.

Conclusion

The answer for the time being is Prudent Avoidance and Common Sense, at least until properly structured research has been concluded, and then independently assessed. The answer is not to listen only to the Industry, who have tended to ensure that the Industry Commissioned research proves their point on safety. Currently prudence advocates that reliance on the NRPB Guidelines is no longer sufficient.

Many independent University researchers who have produced adverse results have had their research funds curtailed, or taken away which stifles further investigation of adverse effects shown by earlier research. Governments are elected to be aware of what is going on, and to protect the public at large when uncertainties exist, and prudent avoidance should currently prevail over commercial interests until the further essential research has been completed and "independently" assessed.

Revised 10th September 1999

HALSEY MEYER HIGGINS


 

Mobile Phones and Mobile Phone Networks Potential Litigation or Law Suits

by Mr. Alan Meyer, Gothenburg, September, 1999. Revised 17th February 2000

At this juncture the legal position is akin to a minefield and therefore it is wise to tread extremely carefully.

The current Guidelines are set by ICNIRP (the International Commission on Non-Ionizing Radiation Protection) and NRPB (National Radiological Protection Board) in the United Kingdom.

Generally such guidelines are based on Thermal Heating because it is argued that there is no conclusive evidence currently scientifically that there are any other effects beyond the known Thermal Heating Factors. ...

In the United Kingdom those NRPB Guidelines were issued as long ago as 1993. In the development of Mobile phones and Networks that is a very long time ago - to my thinking as lawyer in 1999 and approaching the new Millennium that is too long ago.

My current understanding is that many eminent scientists and scientific researchers believe that low intensity radiation does have scientifically provable biological effects. This contradicts the long stated position of the Industry that Mobiles have no effect at all.

That, however, does not mean either that necessarily mobiles or mobile networks have proven health hazard effects. All it shows is that there is now a situation of some uncertainty, which calls for properly structured and properly independent research. There is some evidence that until very recently the research has not been firstly properly structured, and secondly that possible adverse results have not then been either followed up, or followed up in a proper manner designed to ascertain whether that research might have found something unexpected and contrary to the industrys own research and expectations.

Looking from a possible litigation viewpoint there are now parallel situations in both Tobacco and BSE/CJD from which some conclusions or inferences may be drawn now - without awaiting the necessary long time scale for this further research to come through with its results one way or another.

For decades the Tobacco Industry has fought off claims that smoking and nicotine have adverse health effects. Now that stance is crumbling both politically and legally with attendant huge costs. ...

Mobile Phones themselves

These operate from a Thermal Heating Standpoint well within the current ICNIRP/NRPB guidelines on safety levels. However the Question needs now to be asked are such Guidelines sufficiently comprehensive and therefore still correct?

But then why do some people appear to experience some problems after use of mobiles:

Headache

Nausea

Memory loss and disorientation

Cancer tumours

Skin irritation?

There are many reported instances - usually dismissed as anecdotal - of people suffering as a result of use or in many cases overuse of mobiles. In some instances legal claims have been compromised, but with binding confidentiality clauses to prevent wider dissemination of such information.

Using but one example, is it usual for a 26/7 year old male who used a mobile 5 or 6 hours a day for months on end to find that he has a cancerous tumour in his neck/lower head in proximity to where his mobile was held? You cant prove legally at present from a single case, what many people might believe was an obvious conclusion. However, a batch of similar cases might well be considered quite differently judicially in a Court of Law.

There is enough concern now within the industry itself relating to hands off - shields - headsets, Industry patent applications to reduce health risk - to begin to suspect it may all be reminiscent to the tobacco debate, and more recently to the BSE disaster.

Consequences - Mobile Phones

(1) Product Liability

Should it become clear that the digital pulsed modulation signal does have adverse biological effects - which may act as triggers to adverse health conditions, - then manufacturers could face massive legal claims for failing to provide any or adequate health warnings to mobile phones users. Lloyds of London has I understand refused to issue product liability cover for manufacturers and sellers of mobiles. However other Insurers do provide cover.

(2) Employers Liability

Employers are usually required to provide a safe system of work.

A number of employers expect their employees to carry out their duties and responsibilities using mobile phones for hours at a time.

It could well turn out to be a non-safe system of work for which substantial damages may be awarded as a result of adverse health conditions.

A number of cases have already been settled out of court but again subject to confidentiality clauses.

C. Mobile Phone Telecommunication Masts and Base Stations.

From a thermal heating viewpoint they will only affect someone exposed directly close to the antennae and dishes - a matter of a few metres probably. However these guidelines only cover the adverse effect of thermal heating. Presently it is not known whether it is safe to expose people to long term cumulative biological Effects at distances within 200/250 metres of transmission Masts.

There is no direct proof yet that the low intensity radiation from the antennae and dishes or masts can have a biological effect. Yet is the operative word here. Why? Because no one so far has carried out prolonged tests over a matter of years to ascertain whether masts can produce biological effects in human beings, who are exposed to chronically to such radiation for months and years.

There are however some studies which now suggest that prolonged exposure may well be a factor in inducing ill health in people.

The 1996 University of Bern Schwarzenberg study on short wave masts is a possible example of what may be a problem for people living close to a transmission mast.

The 1998 Loscher & Kas study into the Extraordinary Behaviour Disorders in Cows in proximity to transmission Stations ought to be sounding warning bells throughout this enormous industry.

Why? Because if it is subsequently found that these warnings - coupled with the European Treaties Environmental Advisory Article 130r - are or have been completely ignored when notice should have been taken, the legal dangers will become far more substantial and costly to the Industry.

Consequences - who will be at risk from legal claims?

The mobile phone network operators who usually own and erect their own, or share masts for the antennae and dishes.

The landowner, private or public, who leases or sells the land to enable the masts and base stations to be erected by the network operator in exchange for an annual rental or sometimes a sale price.

The Authority, who perhaps sanctioned the Landowner to allow the Mast to be erected on its land or buildings i.e., Schools, Police and Fire Brigade Authorities together with Health Authorities responsible for Hospital Land and Buildings.

The Insurers of all such people and bodies.

Why Masts could be found to have adverse health consequences with legal implications?

(1) Because of network operators insistence for economic and access reasons to place them too close to permanently inhabited buildings such as Homes, Childrens Schools and Hospitals.

(2) Because no long term research has been carried out to ascertain whether low intensity radiation for this new source may have biological effects on some people and

(3) If it is so found that radiation from Masts can indeed change cell structures and the production of Nocturnal Melatonin (an Inhibitor) and the enzyme ODC (a Promoter) often found in cancer tumours

Then Mobile phone network operators, manufacturers and Landowners may all find themselves, or their Insurers, at substantial risk of health effect claims.

It is as yet a minefield - but the existence of this minefield and the possible consequences are now known. The warning voices have expressed concern. The scientific proof has yet to come through one way or another. It may take many more years before the health outcome is known.

 

D. Conclusion

What needs to be done now to cover the period of yeas during which the fresh, independent, properly directed research is carried out to ascertain whether the biological effects of low intensity radiation do indeed lead to establishing adverse health effects in some people?

1. Mobile Phones

The makers and distributors should be required to issue to purchasers health warning information particularly addressing the issue of prolonged use of the phones each day as a regular pattern of use.

In addition it should also be pointed out that unless a mobile phone is switched off it is in permanent use, and may adversely affect a persons body if carried in clothing or attached to a belt.

Together such additional information might constitute a better informed consent on the part of a purchaser of a mobile phone who would be in a position to consider and judge the possible health risks.

2. Telecommunication Masts and Base Stations

Governments should require their Planning Authorities to ensure that these are located well away from permanently occupied buildings such as childrens schools in particular, peoples homes, hospitals and old peoples homes.

In Europe the Precautionary Principle and Preventative Action as advised in Article 130r of the European Treaties should be both followed and adopted into National Law, and then enforced. In many countries this is already happening, and minimum distances away from permanently inhabited buildings are being required.

No one currently knows what may be the correct minimum distance due to lack of the essential research on cumulative biological effects. However in many instances distances between minimum of 250 metres to 500 metres are being required.

An important practical side issue which concerns the public at large is that when masts are placed too close to permanently inhabited buildings it causes prolonged stress and anxiety, which can medically bring about adverse health conditions.

That too may lead to expensive litigation against Network Operators, who continue to choose to ignore the EU Precautionary Principle - which probably is only common sense anyway?

In addition, the European Convention on Human Rights, when introduced next year into English Law, may also produce new causes of action for Communities of people who find Masts being erected unnecessarily too close to their homes where their privacy is invaded, without their consent, and too often, without any prior notification or warning.

 

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