Electromagnetic Hypersensitivity – An Issue of Today’s Internet of Things

This article seeks to convey an appreciation of potential ramifications of EHS from a legal standpoint regarding various governments’ modernisation policies.

Electromagnetic Hypersensitivity – An issue of today’s Internet of Things
POSTED BY DAVID-HAND, justis.com, 18 MAY 2018

As towns and boroughs develop, more and more public spaces contain WIFI; some are provided to the public for free and some for payment. Free WIFI is an incentive to use a space, initiated by businesses and municipal corporations, be it in the corner coffee shop or a public square in town. However, there are some people for whom free WIFI, or any kind of WIFI, could be a nightmare. In fact, not just WIFI, but any everyday electronic device such as a mobile phone, television, computer, radio, cell tower masts; anything that emits radiation. These are people who suffer from Electromagnetic Hypersensitivity (EHS); this condition was recently brought to wider attention by the ‘Breaking Bad’ spinoff show, ‘Better Call Saul’, in which a character had to cover himself in special material and live with no electricity. Yet from as early as 1932, the condition was referred to as ‘electro-hypersensitivity’ by a German doctor.[1] The condition is also known as ‘electrosensitivity’; for a useful historical development of EHS, see here.[2]

This article seeks to convey an appreciation of potential ramifications of EHS from a legal standpoint regarding various governments’ modernisation policies.

According to the World Health Organization, EHS “is characterized by a variety of non-specific symptoms, which afflicted individuals attribute to exposure to electromagnetic frequencies. The symptoms most commonly experienced include dermatological symptoms (redness, tingling, and burning sensations) as well as neurasthenic and vegetative symptoms (fatigue, tiredness, concentration difficulties, dizziness, nausea, heart palpitations, and digestive disturbances). The collection of symptoms are not part of any recognized syndrome.”[3]

Nonetheless, the WHO whilst recognising the condition does not deem it a medical diagnosis, instead stating more research is needed. There is debate about whether EHS is actually a “nocebo effect”, i.e. when the expectation of becoming sick due to something feared becomes a reality.[4] Whilst numerous doctors disagree on the cause of EHS, they all agree that people do suffer from the symptoms stated.

Since it is agreed that some people may suffer from some of the symptoms in a severe manner, questions arise: if it isn’t a disease, can they benefit from disability grants from the government? Should employers have work areas equipped with Ethernet cables instead of WIFI to facilitate them? In the case of EHS prone children, should primary and secondary schools disable their WIFI altogether? Would it be discriminatory to not accommodate people who suffer from EHS? On the other hand, what about those people that are happy for all the free WIFI zones? Is there a right to ‘be connected’ in today’s world of the Internet of Things; to access information and express communication; to facilitate learning tools and modern education?

Equity vs equality; analogue vs digital; offline vs online. The question of balancing the competing human rights of the varying groups is perhaps best answered through empathy, awareness and proactive measures by all stakeholders concerned; this could remove the need to boggle the courts with these scientific cases.

Germany and Sweden are amongst the few countries that have recognized EHS as a medical impairment. Austria has issued guidelines on how to diagnose and treat EHS.[5] Federal law in the United States of America [6] defines ‘disability’ broadly as a physical or mental impairment that substantially limits one or more major life activities, including caring for oneself, sleeping, learning and concentrating. Arguably, it would capture EHS.

To date, there have been court cases around the world which have involved EHS, generally with claimants seeking compensation as being disabled.

In 2012, the highest Federal Court in Administrative matters in Germany,[7] held that the EHS of a claimant was caused by his prolonged exposure to types of radiation; he was employed as a mechanic for radar systems in the German army. Thus, the court qualified it as an occupational disease.[8]

A Spanish court recently decreed[9] total permanent disability status for a telecommunications engineer in the exercise of his profession; he was suffering from EHS and the condition prevented him from working in environments with electromagnetic fields. After being denied disability grants by a first court, the High Court of Madrid found the claimant in fact qualified under the relevant Social Security law for disability; however, the court noted the disability was limited only to that profession and that the claimant could work in “white zones” or areas which had no WIFI signals.[10]

In 2015 a French Court awarded a disability grant to a woman suffering from EHS, although the court did not “formally recognize EHS as an illness.”[11]

The United Kingdom does not recognize EHS as a disability, or as a condition.[12] However, there are instances of individuals seeking to rely on EHS as a means for disability: in the evidence used in an application for leave for judicial review of a decision of Department of Work and Pensions (which was refused)[13] and as a grounds of ill health for early benefits (also refused).[14] Whilst there are numerous reports of people in the UK suffering from EHS symptoms, conflicting opinions, in addition to studies conducted regarding the cause of EHS, have divided the issue, with some like Dr James Rubin of King’s College Institute of Psychiatry observing, “we’ve spent millions on the research and the time comes when you have to say, in the future the money would be better spent on looking for effective treatments, rather than chasing a cause.”[15] However as far back as 2007, the National Health Service[16] opined that care should be taken when interpreting the type of studies used to disprove symptoms of EHS; for example, putting a mobile phone in a blindfolded subject’s hand for 15 minutes and leaving it off – and not telling the subject whether it’s on or not and recording how the subject feels. The resulting status quo is that, with no prescribed or regulated recourse, there are numerous support group sites like http://www.electrosensitivity.org.uk and http://www.es-uk.info offering support and information for individuals who may be sufferers.

Other common law countries such as Canada,[17] and Australia[18] have had employment-based cases regarding EHS as a disability; additionally, there have been reports that institutions are being sued to use less powerful WIFI devices[19] or, to prevent the installation of WIFI at all.[20] Similar instances have occurred in the US as well.[21]

To focus on the Caribbean, in the British Virgin Islands a claimant claimed via a constitutional motion that he was suffering from EHS symptoms and sought an injunction to have the telecommunications authority stop the transmission of radiation from antennas outside of his home, place of work, outside his parents’ restaurant near the airport and Sports Club. He also wanted the antennas taken down.

The court struck out his claim upon application by the defendant, basically finding that the claimant’s pleadings were insufficient and that it failed to show a ‘‘direct causal link’’ between the emissions of the antennas and the harm allegedly suffered.[22] It also found in accordance with precedent, that there were alternative private law remedies available to the claimant and so the constitutional motion was procedurally inappropriate.

This case demonstrates the possibility that individuals in the Caribbean may already be suffering from EHS; residents in various parts of Trinidad and Tobago have a decade of documented protests against the erection of cell tower masts nearby to where they live,[23] with some claiming to be suffering from headaches and most fearful of radiation exposure.

Given the context of regional governments policies like Trinidad and Tobago’s[24] and Jamaica’s[25] in their drive for modernization regarding free WIFI in public spaces, a collaborative approach is required by all stakeholders to ensure sufferers of EHS have ‘the right to zero WIFI.’

For example, Ministries of Health would have to consider formally recognizing EHS as an impairment or disability; doctors must be aware of EHS and should not shy away from diagnosing it as such; governments must ensure that adequate public spaces are earmarked as ‘‘green spaces’’[26] i.e. free of WIFI and radiation.

Employers for their part, would have to consider what could be done to accommodate employees who may suffer from EHS, whether it is to allow them to work from home or provide Ethernet wired ‘‘green rooms’’ or to incorporate EHS in any disability benefits if it is an occupation which may involve excessive exposure to electromagnetic frequencies, for example, a telecommunications engineer. Otherwise, employers potentially risk being found to be discriminatory.

Lawyers must take care in presenting properly evidenced cases in the correct form, to best represent their clients, or risk the cases being dismissed on technicalities and procedural errors. Fortunately for lawyers, with access to legal online libraries, they have the wealth of various common law territories to draw upon to create effective and thorough arguments.

About the author

Mukta Balroop is a contributing author for Justis Publishing, specialising in Caribbean interests. Mukta graduated with an LL.B. (Hons) from the University of West Indies in 2012, where he went on to gain experience as an In-house counsel member at Tharuna Limited, and then joined the Judicial Research Counsel in the Court of Appeal for the Judiciary of Trinidad & Tobago. Recently Mukta received the prestigious Chevening Scholarship – the UK government’s global scholarship programme, funded by the Foreign and Commonwealth Office (FCO) and partner organisations – to study for an LL.M. at Queen Mary, University of London, majoring in Media Law.

Mukta has also worked for the Judicial Education Institute of Trinidad & Tobago and Hobsons Notaries Public and Trademark & Patent Agents, Attorneys-at-Law. Mukta was the overall winner at the Price Media Law Moot Court Competition Americas regional round in New York, also winning the prize for Best Oralist of the Finals. He progressed to the quarterfinals at the international round of the same competition, at the University of Oxford, and was distinguished as the Best Oralist Runner Up overall. Mukta has also won the Justice Jessel Hannays Memorial Prize for the highest score in Law of Remedies at the Hugh Wooding Law School.

References

[1] https://www.emfanalysis.com/ehs-symptoms/

[2] http://www.electrosensitivity.co/history.html

[3] http://www.who.int/peh-emf/publications/facts/fs296/en/

[4] http://www.huffingtonpost.ca/blair-king/nocebo-effect-WIFI_b_8315564.html

[5] http://magdahavas.com/wordpress/wp-content/uploads/2012/06/Austrian-EMF-Guidelines-2012.pdf

[6]Americans with Disabilities Act 42 U.S.C. § 12101

[7] http://www.bverwg.de/100414B2B36.13.0

[8] https://www.emfacts.com/2014/07/germany-important-court-victory-for-electro-hyper-sensitivity-victim/

[9] https://app.box.com/s/w140a999q1wg3u9vuu93qksb1fgab2d6

[10] http://mieuxprevenir.blogspot.co.uk/2016/08/spain-high-court-of-madrid-ruling.html

[11] http://www.bbc.co.uk/news/technology-34075146

[12] http://www.bbc.co.uk/news/technology-34075146

[13] The Queen on The Application of Lyrae v Department of Work and Pensions 2016 [2016] EWHC 3249 (Admin)

[14] Thompson [PO-3739] decision by Pensions Ombudsman Tony King

[15] https://www.theguardian.com/society/2013/mar/29/electrosensitivity-is-technology-killing-us

[16] https://www.nhs.uk/news/neurology/mobile-phone-mast-sensitivity-is-it-all-in-the-mind/

[17] Judy Nicholas v The Metropolitan Life Insurance Company of Canada, Carrying on Business as Met-Life, The Great West Life Assurance Company, Health Sciences 2003 BCSC 506;

[18] McDonald and Comcare [2013] AATA 105 (28 February 2013)

[19] https://www.elettrosensibili.it/tag/wi-fi/page/13/

[20] https://www.emfacts.com/2015/11/parents-success-in-stopping-WIFI-installation-at-australian-school-2/

[21] https://www.prlog.org/12381499-los-angeles-unified-school-district-accommodates-teacher-who-fell-ill-after-wireless-installation.html; http://www.telegram.com/article/20150824/NEWS/150829606

[22] David Penn v Telecommunications Regulatory Authority;Attorney General Defendant [2013] ECSC J0102-1

[23]https://www.mastvictims.org/index.php?content=news&page=2&pages=3&action=view&type=country&id=168

[24]http://ttWIFI.gov.tt/Background; http://archives.newsday.co.tt/2017/04/25/tatt-to-bring-free-WIFI-to-public-places/

[25] http://jis.gov.jm/govt-provide-free-wi-fi-hotspots/

[26] http://www.electrosensitivity.co/white-zones.html

http://www.justis.com/2018/05/18/electromagnetic-hypersensitivity/