AS TO THE ADMISSIBILITY OF
Application No. 25181/94
by H. U. H.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. S. TRECHSEL
J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 September 1994
by H. U. H. against Switzerland and registered on 19 September 1994
under file No. 25181/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
2 April 1996 and the observations in reply submitted by the
applicant on 19 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swiss citizen, is an engineer residing in
Wattenwil in Switzerland. Before the Commission he is represented by
Mr R. Schaller, a lawyer practising in Geneva.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
The applicant undertakes environmental biological research in his
own laboratory. One research project concerned food prepared in
microwave ovens.
In spring 1991, he published, together with B., a professor at
the Federal Technical High School in Lausanne, a research report with
the title "Comparative investigations on the effects on human beings
of food prepared by conventional means and in microwave ovens". The
report contained the following results:
"Food which has been heated up, or thawed out, or cooked, in a microwave oven (milk and vegetables) caused in the blood of the test persons some significant changes such as: the reduction of all haemoglobin values, and an increase of haematocrits, leucocytes and of cholesteric values, in particular of the HDL and LDL portions. As regards lymphocytes, a more pronounced decrease in the short term was apparent, particularly in the case of vegetables prepared in the microwave oven, than in all other variants. On the basis of the luminosity of luminous bacteria, a significant relation was apparent between the absorption by the radiated food of technical microwave energy and the luminosity which was subsequently measured in the blood serum of the test persons. It can be concluded therefrom that this technical energy was inductively transmitted via the food to the human being; a process which is determined according to physical laws and which is confirmed by statements in literature. The measured effects of microwaves via food on human beings demonstrate, as opposed to unradiated food, changes in the blood which indicate the commencement of a pathological process, as also found when cancerous growth is initiated." "Die im Mikrowellenherd erhitzte, aufgetaute oder gekochte Nahrung (Milch und Gemüse) verursachte im Blut von Probanden teils signifikante Veränderungen wie: Abnahme aller Hämoglobin- Werte und Zunahme des Hämatokrites, der Leukozyten und der Cholesterin-Werte, im besonderen der HDL- und der LDL-Anteile. Bei den Lympozyten war vor allem beim im Mikrowellenofen aufbereiteten Gemüse eine kurzfristig stärkere Abnahme feststellbar als bei allen anderen Varianten. Anhand der Leuchtkraft lumineszierender Bakterien wurde ein signifikanter Zusammenhang zwischen der Aufnahme technischer Mikrowellen-Energie von den bestrahlten Nahrungsmitteln und der Leuchtkraft, die anschliessend im Blutserum der Probanden gemessen werden konnte, festgestellt. Daraus kann eine induktive Weitergabe dieser technischen Energie via die Nahrung auf den Menschen abgeleitet werden; ein Vorgang, der physikalisch gesetzmässig festgelegt ist und auch durch Aussagen in der Literatur bestätigt wird. Die gemessenen Auswirkungen der Mikrowellen über die Nahrung auf den Menschen zeigen, im Gegensatz zur nichtbestrahlten Nahrung, Veränderungen im Blut, die auf den Beginn eines pathologischen Prozesses hinweisen, und wie sie auch bei der Auslösung eines Krebsgeschehens vorliegen." In 1992 a number of journals and magazines referred to the applicant's report either fully or in part, for instance "Raum & Zeit" and "Vita Sana Magazin". The "Journal Franz Weber" had on the cover page the text "Microwaves: Danger scientifically proven" and displayed a reaper (Sensemann) carrying a microwave oven. The article itself had the title "Microwave ovens: a danger for health. The evidence is uncontestable" and stated inter alia: "The research results of B. and (the applicant) are so worrying that one should prohibit the use of microwaves as soon as possible and stop the production and trade of such apparatuses. At the same time all microwave ovens currently in use should be destroyed. Public health is at stake! ... The ... indubitably proven, devastating characteristics of microwaves adversely affect ... also directly via the radiated food the human being." "Die Forschungsergebnisse von B. und (des Beschwerdeführers) sind dermassen besorgniserregend, dass man den Gebrauch von Mikrowellen schnellstens verbieten und die Herstellung sowie den Handel mit solchen Geräten einstellen sollte. Zugleich sollten alle Mikrowellenherde, die derzeit in Betrieb sind, vernichtet werden. Die öffentliche Gesundheit steht auf dem Spiel! ... Die ... zweifellos bewiesenen, zerstörerischen Eigenschaften der Mikrowellen wirken ... auch auf direktem Wege über die bestrahlte Nahrung schädlich auf den Menschen." The "Journal Franz Weber" mentioned the applicant's name both as the co-author of the article and the editor of the journal. In a previous article in the "Journal Franz Weber", published in 1989, the applicant had written: "Today, microwaves, together with cigarettes, are probably one of the worst reasons for cancer which the human mind has ever thought up ... Have you got a microwave oven within your walls? Then bring it as soon as possible back to where you bought it so it can be disposed of! For microwave ovens are more malicious than the gas stoves of Dachau. If you prepare your meals in such an oven, your slow death will begin ..." "Die Mikrowellen gehören heute zusammen mit den Zigaretten zu den wohl schlimmsten Ursachen des Krebses, die das menschliche Gehirn sich jemals ausgedacht hat ... Haben Sie in Ihren Wänden einen Mikrowellenofen? Dann bringen Sie ihn schleunigst zur Beseitigung dorthin zurück, wo Sie ihn gekauft haben! Denn die Mikrowellenöfen sind heimtückischer als die Gasöfen von Dachau! Wenn Sie ihr Essen in solch einem Ofen zubereiten, beginnt Ihr langsames Sterben ..." Professor B. later distanced himself in a newspaper article from the applicant's publications. In Professor B.'s submissions, the research of 1989 only permitted the conclusion that further research should be undertaken on the matter. He found that the applicant's conclusions had such a weak basis that a normal scientist would never have dared formulate them. Subsequently, the Association of Electrical Appliances for Household and Trade in Switzerland (Fachverband Elektroapparate für Haushalt und Gewerbe in der Schweiz) told the applicant that his statements concerning the influence on the health of human beings of microwave ovens amounted to a completely unjustified denunciation (Verteufelung) of the apparatus lacking serious scientific conclusions. The applicant was requested to issue a declaration according to which in future he would no longer make any unfair statements about microwave ovens. The applicant did not react thereto. On 7 August 1992 the Association filed an action against the applicant before the Commercial Court (Handelsgericht) of the Canton of Bern. The Association submitted an expert opinion of Professor T. of the Federal Technical High School at Zurich who had specialised in food research. In his opinion, Professor T. concluded that the applicant's research was useless and the conclusions untenable. On 19 March 1993 the Commercial Court upheld the action and prohibited the applicant, under threat of punishment, from stating that food which had been prepared in microwave ovens was hazardous to health and led to changes in the blood of consumers, indicating a situation which could amount to the beginning of cancerous growth. The applicant was also prohibited from using in publications or in public conferences about microwave ovens the picture of a reaper or any other symbol of death. The Court relied in its decision on Sections 2 and 3(a) of the Federal Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb, see below, Relevant domestic law). The applicant filed an appeal (Berufung) which the Federal Court (Bundesgericht) dismissed on 25 February 1994, the decision being served on 28 March 1994. In its decision, the Court found that scientific research and publications did not as such fall within the framework of competition (wettbewerbsgerichtet) as long as they remained academic. Scientific statements interfered with competition, however, if, as in the present case, they were employed negatively to influence the sale of a particular product. The Court further noted that in the proceedings the applicant had admitted that he liked the idea of the death symbol of a reaper, and that Professor B. had formally distanced himself from the research. The decision continued: "Positive or negative publicity with scientific data must therefore, in the public interest and in order to ensure effective competition, only be admitted if the data correspond to established scientific conclusions, or at least if the diverging views are clearly referred to. If there is no full guarantee that the scientific data are correct, their uncritical publication is at least misleading and therefore deceptive within the meaning of Article 3 para. a of the Federal Unfair Competition Act ... According to the Commercial Court's conclusions the applicant's views are not at all scientifically secure; on the contrary, they are, on the whole, rejected. To state in the context of competition that they are correct is inadmissible within the meaning of Article 3 para. a of the Federal Unfair Competition Act..." "Positive wie negative Werbung mit wissenschaftlichen Angaben ist daher im Interesse der Allgemeinheit und des funktionierenden Wettbewerbs bloss zuzulassen, wenn diese Angaben gesicherter wissenschaftlicher Erkenntnis entsprechen, oder wenn jedenfalls unmissverständlich auf den Meinungsstreit hingewiesen wird. Besteht keine volle Gewähr für die Richtigkeit der wissenschaftlichen Angaben, ist deren unkritische Weitergabe zum mindesten täuschend und damit irreführend im Sinne von Art. 3 lit. a UWG ... Nach den tatsächlichen Feststellungen des Handelsgerichts ist die Auffassung des Beklagten keineswegs wissenschaftlich gesichert, vielmehr wird sie überwiegend abgelehnt. Sie im Wettbewerbsbezug als richtig auszugeben, ist nach Art. 3 lit. a UWG nicht zulässig ..." The Court concluded that a person relying on the freedom of scientific research was free to explain his conclusions within academic circles. However, in the context of competition he could not assume that his views were correct if they were disputed. B. Relevant domestic law 1. According to Section 2 of the Federal Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb), any conduct, influencing relations between competitors or between persons offering and receiving, is unfair and unlawful if it is deceptive or in any other way breaches the principle of good faith. According to Section 3 para. a of the Federal Act, unfair conduct consists of diminishing others, their goods, works, achievements, their prices or their business situation by means of incorrect, misleading or unnecessarily damaging statements (wer andere, ihre Waren, Werke, Leistungen, deren Preise oder ihre Geschäftsverhältnisse durch unrichtige, irreführende oder unnötig verletzende Äusserungen herabsetzt). Section 9 envisages an action for persons claiming to have been threatened by means of unfair competition. 2. According to Section 84 of the Federal Judiciary Act (Organisationsgesetz), complaints about cantonal acts must be raised before the Federal Court by means of a public law appeal (staatsrechtliche Beschwerde). COMPLAINTS 1. The applicant complains under Article 10 of the Convention of the prohibition to publish his views according to which he has scientific proof that microwave ovens are hazardous for consumers' health. He is by no means the only one to draw attention to these dangers; reference is made for instance to an article in Le Monde of 27 February 1993 according to which Electricité de France is undertaking research on the effects of electromagnetic fields on health. The applicant submits that the interference with his right under Article 10 para. 2 of the Convention was not "prescribed by law" within the meaning of Article 10 para. 2 of the Convention; thus, the Federal Unfair Competition Act is too general and does not cover scientific research. Moreover, there was no aim justifying the interference with the applicant's rights within the meaning of para. 2 of Article 10 of the Convention, and the interference was also not "necessary in a democratic society" within the meaning of this provision. Thus, he did not publish his conclusions in a commercial context, and it was absolutely disproportionate to stifle the applicant's weak critical voice in view of the opportunities available to producers to present the advantages of their product. 2. Under Article 8 of the Convention the applicant complains that the prohibition to publish his views calls in question his position as a scientist. 3. The applicant complains under Article 6 para. 1 of the Convention that the authorities prohibited him from undertaking an act which he did not intend to carry out. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 13 September 1994 and registered on 19 September 1994. On 16 January 1996 the Commission decided to communicate the application to the respondent Government. The Government's written observations were submitted on 2 April 1996. The applicant replied on 19 June 1996, after an extension of the time-limit fixed for that purpose. THE LAW Under Article 10 (Art. 10) of the Convention the applicant complains of the prohibition to publish the results of his scientific research. The applicant also invokes Articles 6 and 8 (Art. 6, 8) of the Convention. Article 10 (Art. 10) of the Convention, insofar as relevant, states: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." The Government submit that the interference with the applicant's rights was justified under Article 10 para. 2 (Art. 10-2) of the Convention. Thus, the measure was "prescribed by law" as required by this provision in that it was based on Section 9 of the Unfair Competition Act. Moreover, the measure aimed at "the protection of the ... rights of others" and "the prevention of disorder" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention. The Government submit that the domestic authorities had not exceeded the margin of appreciation left to them under Article 10 para. 2 (Art. 10-2). Thus, the measure only affected the applicant in his commercial competition relations. He remains free to undertake scientific studies and to publish his results, in particular in scientific and academic circles. It is true that scientific progress at times originates in far-fetched ideas, and the Federal Court never determined whether or not microwave ovens damaged health. In the Government's opinion, the question before the authorities was whether or not these dangers were scientifically proven. They concluded that there was a controversy in this respect and that one could not therefore refer to objectively and scientifically established dangers. Indeed, commercial publicity is inadmissible where it is incorrectly presented as being scientifically proven. Insofar as the applicant also employed symbols of death in his publications, this was bad taste, unnecessarily hurtful and misleading. In a publication in 1989 the applicant compared microwave ovens with Nazi concentration camps. These arguments are contested by the applicant. He contends that the law is unclear. It gives the impression that it concerns persons interested in competition. A wide interpretation of the law would prevent a large number of religious, philosophical or political opinions. The applicant further points out that Article 10 para. 2 (Art. 10-2) of the Convention does not mention "the economic well-being of the country" as in Article 8 para. 2 (Art. 8-2) of the Convention. The applicant further submits that the Government are avoiding the real issue, namely whether it can be justified to prohibit the publication of a thesis only because it is not considered to be scientifically proven. The authorities intervened in a phase of scientific research and issued a prohibition although the applicant undertakes individual research and plays no part in the commerce of microwave ovens. The publication of 1989 was never the object of the present proceedings. The applicant claims that it is disproportionate to throttle a weak critic whereas the producers of microwave ovens constantly advertise their products. Freedom of opinion is a necessity in a democratic society in that it can make the authorities and science discover problems of public health. The Commission finds that this complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The case cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. M.-T. SCHOEPFER G.H. THUNE Secretary President to the Second Chamber of the Second Chamber
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