iPhone: a lack of information on the risks associated with prolonged use may give rise to a claim for compensation
The right to freedom to make different choices has been infringed. Compensation and a duty to provide information are required even in the absence of scientific certainty and specific legislative action
Key points
Apple may be required to pay compensation for failing to provide information on the risks associated with prolonged use of the iPhone. In order to fulfil their safety obligations, manufacturers must not only certify the device’s compliance, but must also provide consumers with clear, visible and adequate information on the risks – even potential ones – arising from prolonged exposure to radio frequencies.
Scientific uncertainties
The Court of Cassation upheld the appeal of a woman who was seeking compensation for the infringement of her right to self-determination and her freedom to make different choices: from using her iPhone for shorter periods, to using it with earphones, or away from children. The discovery of possible brain damage had come to light, about two years after the purchase, whilst reading a research report by the International Agency for Research on Cancer, which suggested a correlation between prolonged exposure to electromagnetic waves and the onset of cancer in the long term.
This led to legal proceedings being brought against Apple Distribution International Ltd, which lost the case at the first two levels of jurisdiction. Both the Court of First Instance and the Court of Appeal ruled against the claimant. In the view of the trial judges, the ‘precautionary principle’ is a rule of public law addressed to the legislature and is not directly applicable in private law relationships. Furthermore, there was a lack of scientific evidence of a causal link between exposure to electromagnetic waves and the onset of of tumours.
The way is clear for compensation
The Supreme Court has quashed these judgements and remanded the cases, paving the way not only for compensation to be awarded to the claimant, but also affirming an obligation to act on the part of the manufacturers. The argument that the precautionary principle does not entail information obligations applicable to private individuals without further legislative intervention does not preclude Apple’s unlawful conduct. As for scientific uncertainty, this does not preclude the duty to inform; on the contrary, it must be ‘the premise that requires proactive, preventive action to protect consumers with regard to the safety of products”.
This is an obligation imposed on manufacturers by the applicable Consumer Code, without the need for further legislative action. Nor can the absence of comprehensive warnings on the safe use of mobile phones be remedied simply by referring to the product’s compliance with technical and European standards.
