CASE OF HERTEL v. SWITZERLAND
Violation of Art. 10;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
N. Valticos
7. Mr Hertel has a degree in technical sciences from the Zürich Federal Institute of Technology and is the author of a thesis submitted to the Zürich Institute of Veterinary Sciences. He is now retired and lives at Wattenwil (Canton of Berne), where he conducts private research in his own laboratory. 8. In collaboration with Mr Blanc, a professor at the University of Lausanne and a technical adviser at the Lausanne Federal Institute of Technology, Mr Hertel carried out a study of the effects on human beings of the consumption of food prepared in microwave ovens. Over a period of two months, the blood of eight volunteers who followed a macrobiotic diet was analysed before and after consuming eight types of food (some were cooked or defrosted in a microwave oven and the others were raw or cooked by conventional means). A research paper was written. It was dated June 1991 and entitled Vergleichende Untersuchungen über die Beeinflussung des Menschen durch konventionell und im Mikrowellenofen aufbereitete Nahrung (“Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens”), and it concluded as follows (translation of an extract from the summary in French that was appended to it): “… … a significant relation was established between the absorption of microwave energy by the food and its transfer to the volunteers’ blood. Thus this energy could be inductively transmitted to human beings by means of the food, a phenomenon governed by the laws of physics and confirmed in the literature [references to: Alfred Pitz, Zellphysiologie des Krebses, Akademie für Naturheilkunde, Munich, 1975; Günter Helmdach, Die heutige Technik zerstört sich selbst, Forschungsstelle für Dendroökologie, Auf der Brede 49, D-5608 Radevormwald, 1989]. The measurable effects on human beings of food treated with microwaves, as opposed to food not so treated, include changes in the blood which appear to indicate the initial stage of a pathological process such as occurs at the start of a cancerous condition.” 9. The quarterly Journal Franz Weber devoted part of its nineteenth issue (January/February/March 1992) to the effects on human health of using microwave ovens. 10. On the cover there is a picture of the Reaper holding out one hand towards a microwave oven, together with the following title: “The danger of microwaves: scientific proof” 11. In an editorial on page 2 Mr Franz Weber writes: “… To say that our journal is fearless is almost to state the obvious. The Journal Franz Weber was the first newspaper in the world to pinpoint the dangers of microwave ovens and has kept up its accusations despite massive attacks by the promoters. Today science proves us right (see pages 3–10). Microwave ovens should be banned. We would not be surprised if the researchers who have had the courage to defend the findings of their research were attacked in their turn, seeing that millions or even thousands of millions are at stake. But truth is in the end more durable than a deal involving thousands of millions at the expense of our health. We shall continue to fight for the truth in this case too. …” On the same page the following can be found under the heading Imprint: “… Editorial staff: … H.U. Hertel, René d’Ombresson…” 12. On pages 3–10 there is an article by René d’Ombresson entitled “Microwave ovens: a health hazard. Irrefutable scientific evidence” and the introductory paragraphs are worded as follows: “A scientific study demonstrates the health hazards of food prepared by microwave radiation and proves the Journal Franz Weber right. Off to the scrap heap and the rubbish dumps with microwave ovens! The treatment to which they subject food is so pernicious that it causes a change in the blood of whoever eats it and this leads to anaemia and a precancerous condition. These are the findings of a rigorous study carried out by a professor of the EPLF [Lausanne Federal Institute of Technology] and an independent researcher, who were determined to answer once and for all the crucial question: are microwave ovens harmful or not? Here is a simplified summary of the study, followed by the study itself for those who are not put off by figures and scientific demonstrations. We were anxious to publish both these, albeit at the risk of repetition, so that the findings should be available to the widest possible public.” The article continues (pages 4–5): “Simplified summary of the research … warnings are being given by more and more people: microwave ovens are not harmless. Legitimate anxieties Only recently, the European Commission made public a brief report containing the anxieties of certain researchers, confirming the main points of the findings made by Dr Hans Ulrich Hertel, an independent researcher, findings which we published in detail in our April 1989 issue. The claim that microwave ovens were harmful came as a bombshell to technologists and industrialists and provoked wide discussion, which we reported on in the July 1990 issue of the Journal Franz Weber. Giving a scientific reply The claim was taken seriously, however, by a number of scientists, including Mr H. Blanc, Professor of Biochemical Engineering at the Lausanne Federal Institute of Technology, who undertook some research in collaboration with Hans Ulrich Hertel. It is the damning findings of that work that we are summarising here, in its broad outlines, and are publishing for the first time. Sealing is sufficient… … [The] effects [of artificial microwaves] have been known since the last world war thanks to one of their applications, radar. … And food? On the other hand, hardly any questions were asked about the quality of food irradiated in this way. It was accepted that such food was neither better nor worse than food cooked by conventional means. But, to our knowledge, no research attempted to answer the question ‘harmful/not harmful?’ Harmfulness demonstrated Today the answer is unequivocal: the use of microwaves for preparing food is harmful. The microwaves impair the organic substances and cause alarming changes in the blood of those who consume them, notably anaemia and precancerous conditions. Those are the findings of the study carried out by Professor Bernard H Blanc and Dr Hans U. Hertel. Clinical research … Eight food variants … Incriminating results Food treated by microwaves caused significant changes in the volunteers’ blood (a drop in haemoglobin levels, an increase in the haematocrit, in leucocytes and in the levels of cholesterol particularly of the HDL and LDL forms). As regards lymphocytes, the drop was more rapid and more marked where the food was a vegetable prepared with microwaves than it was with other variants. Such changes in the blood count appear to indicate the initial stage of a pathological process such as occurs in a precancerous phase. As the experiment covered only two months, it is reasonable to wonder about the longer-term effects, a fortiori if the effects of the radiation persist. Long-term effects Does food irradiated by microwaves absorb the radiation and transfer it to the organism it is supposed to feed? To answer this crucial question, the researchers applied a known bacterial bioluminescence method which allows the degree of stimulation or inhibition of bacteria in the blood to be measured. The results clearly show that irradiated food irradiates in its turn and that this prolonged effect on the blood must be taken seriously since the phenomenon is one of direct irradiation, whose consequences are only too well known. Measuring the hidden dangers … Burying one’s head in the sand The scientific literature on the damage caused to living organisms by direct microwave radiation is particularly voluminous. It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique that is less dangerous and better suited to nature. The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell-division disorders to haemolysis (destruction of red blood cells), leukaemia and the blockage of natural cycles. Aligned-covered … Cathodic constraints … Living beings in danger! Not a single atom, molecule or cell can, while remaining whole, resist destructive forces of such power, even if that power is no greater than 1 milliwatt. When one considers that four-fifths of the weight of plants, animals and human beings is accounted for by water, the biological dangers represented by such microwaves can easily be imagined. A prey to viruses In addition to the thermic effects of microwaves, there is an athermic effect, although official science pays little attention to it, no doubt because it is not measurable. But under the influence of these two factors molecules are shattered, their structures deformed and their natural functions perverted. … A cell weakened in this way rapidly becomes an easy prey for viruses and fungi. Like a cancer cell If the stress is maintained under the influence of the microwaves, the repair mechanism breaks down and the cell, for want of energy, switches to anaerobic respiration (without oxygen). In place of H2O and CO2 (aerobic respiration) there appears, inter alia, the cell poison H2O2 and CO, as can be observed in a cancer cell. As can be seen, Professor Blanc and Dr Hertel’s findings are sufficiently alarming for the use of microwave ovens to be rapidly banned, their manufacture and sale to cease and all ovens currently in service to be scrapped. Public health is at stake.” 13. Pages 5–10 contain the following account of the study in question: “The complete research paper Comparative study of the effects on human beings of food prepared by conventional means and food prepared with microwaves Bernard H. Blanc … Hans U. Hertel… 1. Introduction … Tolerance thresholds … The harmfulness of microwaves, and above all their thermic effect on biological systems, was discovered very early on (1944). Tolerance thresholds were accordingly established, for microwave ovens as for other applications, in order to avoid the undesirable effects of any leaking radiation. Harmful or not harmful? The quality of food prepared with microwaves has not been officially questioned. It is simply accepted that food prepared in this way is neither better nor worse than food cooked by conventional means. So far as is known, there has not yet been any scientific research which has clarified the possible effects on health of food defrosted or cooked in microwave ovens. Given the widespread use of this method of cooking, is it not appropriate that the question ‘harmful/not harmful’ should at last be answered scientifically? In this study various foodstuffs were accordingly examined firstly in their raw state and secondly in technologically prepared form, defrosted or cooked by conventional means and with microwaves. 2. Description and mode of action of microwaves on living beings through direct radiation and through food prepared in microwave ovens … Well-known pernicious effects The scientific literature on the damage to living organisms by direct microwave radiation is particularly extensive. It is so revealing that it is surprising that the use of microwaves has not long since been replaced by another technique better attuned to nature. The pernicious effects of microwaves range from the destruction of cell membranes and cell respiration and cell-division disorders to haemolysis, leukaemia and genetic changes including the blocking of natural cycles. Infernal radiation The artificial production of microwaves is based on the principle of alternating current. Matter (atoms, molecules, cells) which is irradiated by this electromagnetic radiation thus undergoes, according to the radiation frequency, between one and a hundred thousand million polarity reversals or oscillations per second. Not a single atom, molecule or cell of a living organism would be able to resist destructive forces of such power, even if it was only of the order of 1 milliwatt. Mind the water! Of all the matter and substances in nature which are polar, the hydrogen in water reacts with the greatest sensitivity. … Mr 80% water, beware! … the biological effects of artificially created microwaves will be correlated above all with the generation of heat by friction. And since plants, animals and human beings are 80% water, it is not difficult to imagine the biological dangers of such microwaves. … Easy prey for viruses In addition to the thermic effects of microwaves there is also an athermic effect …, of which little official notice has been taken until now. It is not measurable like the thermic effect. But under the influence of these two effects, molecules are shattered, their structure deformed and their natural functions perverted. Such effects are probably qualitative. This pernicious effect at the qualitative level and the weakening of organic systems, such as cell membranes, are used in genetic engineering to gain access to genes. In this way the genes can be artificially altered by radiation. The cells are thus broken into and the energy tension between the outside and the inside of the cell is removed. A cell weakened in this way becomes an easy prey for viruses and fungi. Danger! Cell poison If the stress were to be maintained, inter alia by microwaves, the repair mechanism would break down and the cell, for want of energy, would be obliged to switch to anaerobic respiration. In place of H2O and CO2 (aerobic respiration) there appears, among other things, the cell poison H2O2 and CO as in a cancer cell. This is why leaked radiation from microwave ovens is so dangerous. Yet safety standards vary from country to country. This shows only too well that the problem is far from being resolved, especially as microwave ovens, as we know very well, are not always reliably sealed and become less leakproof with use, as experience has shown. Danger to the eyes, lungs and endocrine system The microwaves, which in the light of our scientific knowledge can be identified as the main cause, together with artificial radioactivity, of ‘electrosmog’, impair the functions of all living organisms, functions which depend on natural fields. ... It can be expected that these effects will be detectable in the blood count. As powerful as a television transmitter Basically, microwaves can produce the same changes in form and structure in food prepared in microwave ovens as they can in living organisms. … Microwave transmitters on the loose in the organism Through this irradiation of food the structure of the molecules is likewise broken down and deformed and new substances with lasting effects are created about which science knows very little. Furthermore, this powerful, artificially produced radiation will be induced in the food, which in its turn, by a well-known electromagnetic process, will become a source and carrier of the radiation. The actual process of induction in organic matter is not entirely understood. A phenomenon unknown in nature … A proper clinical study Whether and to what extent microwaves are harmful or harmless can at present be determined only by an indirect method – by assessing the effects on living organisms. The present research, based on a method of that kind, is designed to measure the effects of different foodstuffs, cooked by conventional means and with microwaves, as interpreted through changes in the parameters of the blood count of volunteers. 3. Research plan … 4. Analysis and observation of the food variants … 5. Discussion of the results 5.1. General findings All the measures (original values and control values) of erythrocytes, haemoglobin, haematocrits and leucocytes are at the bottom of the normal range of variation. A haematological interpretation shows up indications of a tendency to anaemia among the volunteers. That situation becomes more marked during the second month, when, together with a further deterioration of the blood parameters, an increased level of cholesterol becomes apparent. … 5.2. Table 5 summarises the results (See Table 5) The differences in effects on the human organism of food prepared by conventional means or with microwaves are negligible for a single serving. Certain tendencies, however, are visible, in some circumstances significant ones, statistically confirmed by the Rank method. Appearance of anaemia In the vegetables prepared with microwaves (variant 7) the erythrocytes tend to increase. Among other blood factors, the erythrocytes have the property of being mobilised (probably from the spleen) and rapidly increasing in number in the blood under the influence of short-term stress. If the stress continues, the number falls. Anaemic tendencies thus appear. Differences in food transit In unpasteurised milk (variant 1) haemoglobin levels tend to fall, in vegetables cooked with microwaves (variant 8) they drop significantly. Haemoglobin deficits are to be regarded as stress indicators. The three foodstuffs in question cause stress in the human organism. The digestion of unpasteurised milk is radically different from that of heated milk. The transit of unpasteurised milk through the stomach, because of its coagulation and breakdown, is lengthy and is associated with some stress for the organism. This process, however, is natural, normal and not toxic. Aggressiveness of milk heated with microwaves The transit of heat-treated milk through the stomach and intestines is generally more rapid than that of unpasteurised milk. The proteins are transformed to such an extent that they coagulate into magma more quickly. But in this accelerated transit they are not fully broken down. The heated milk thus has a less stressful effect on the organism but its nutritional value is also less. Milk heated with microwaves, on the other hand, unlike conventionally heated milk, clearly creates a situation of stress which is in no way comparable to that caused by unpasteurised milk. Rheumatism, fever and pituitary insufficiency Haemoglobin concentration and corpuscular content react like haemoglobin. There is a significant drop in the levels above all in foodstuffs prepared with microwaves (variants 4, 7 and 8). These losses also indicate anaemia. In the reference literature they are associated with microcytosis (haemoglobin content), poisoning (chemical, radiation) and their consequences: rheumatism, fever, pituitary insufficiency, etc. The haematocrit increases partly significantly in vegetables prepared with microwaves (variants 7 and 8). While the low haematocrit values may indicate anaemia – as a result of repeated pernicious influences – increasing values are more a sign of acute poisoning. Beware, leucocytes on the increase! The increase in leucocytes, which exceed the normal daily variations – after consuming food, for example – is taken very seriously by haematologists. Leucocytes are particularly sensitive to external challenges. They are often a sign of pathogenic action on the organic system by poisoning and non-infectious damage to the (cell) tissues. The increase in leucocytes in food prepared with microwaves (variants 4, 7 and 8) is greater than with the other variants. The consequences of such a challenge can easily be imagined. Decreasing lymphocytes Lymphocytes in principle react to external challenges (poisons, for example) in the opposite way to leucocytes. They tend to decrease. They react similarly to haemoglobin. The effect of a challenge is above all observable in unpasteurised milk (variant 1) and in vegetables prepared with microwaves (variants 7 and 8). In these cases – initially in every instance – the lymphocytes decrease more significantly than with the other variants. Cholesterol, the result of stress Although, according to accepted opinion, cholesterol levels rise only slowly and over a long period, cholesterol and, more particularly, its HDL and LDL constituents increase after consumption of vegetables cooked with microwaves (variants 7 and 8). On the other hand, with milk (variants 1 to 4) the cholesterol level tends to remain unchanged, and in the case of unpasteurised milk (variant 1) it even drops significantly. This most interesting finding bears out the most recent scientific knowledge, according to which cholesterol, in a situation of acute challenge, can also increase rapidly owing not so much to the cholesterol content of food as to an external challenge. Cholesterol out of nothing Such challenges, as the present research shows, are also possible through foodstuffs which contain practically no cholesterol. Artificial radiation and poisons (antigens) have a cholesterol-forming effect. In an electromagnetic field, cholesterol undergoes changes in its crystal structure and is eliminated from the blood in the form of a deposit. In cancer patients the blood cholesterol level is always very high. This is why a raised blood cholesterol level may be regarded as an obvious sign of a precancerous condition or a developing cancerous condition. Loss of iron Iron levels tend to increase in vegetables prepared with microwaves (variants 7 and 8), contrary to all the other variants. Haemolysis might be thought to be the cause of this phenomenon, being itself a consequence of damage to the membranes of blood cells. Research undertaken up to now does not enable any significant conclusions to be drawn. Established pathogenic disorders In sum, the results obtained from analysing the blood count of the volunteers fed on food prepared with microwaves to the exclusion of the other variants show changes which bear witness to pathogenic disorders. They present a pattern which might correspond to the beginning of a cancerous development and deserves attention. These results match the effects of chemico-physiological deformations observed in living cells subjected to microwave irradiation. Microwaves on the loose in the blood The luminescence of bacteria in contact with the serum of volunteers who had consumed food irradiated by microwaves is significantly higher than that produced by the blood of other volunteers fed on the other food variants. The possibility of a transfer of the radiation energy by induction, through the consumption of foodstuffs prepared with microwaves, and their effect on a living organism, in this instance the blood, must be considered. Such physical phenomena are scientifically proved. The destructive power of microwaves through direct irradiation, as attested in the scientific literature (see the previous paragraph), could also have harmful effects on human beings through indirect radiation, through irradiated food.” 14. Half of page 3 is taken up with a drawing representing a microwave oven, through the glass panel of which can be seen the head of the Reaper. The same picture, reduced in size, appears on pages 4, 5, 6, 7, 8, 9 and 10. 15. On 27 January 1992 Professor Blanc made the following statement: “Statement concerning false information about foodstuffs treated or prepared in microwave ovens which appeared recently in Franz Weber Journal (January-March 1992) [and] Raum & Zeit (Munich, January-February 1992). While the published figures and the description of the preliminary experiment are correct, I totally dissociate myself from the presentation and interpretation of the preliminary exploratory experiment carried out in 1989, which was published without my consent by the co-author of the study in the journals cited above. The results obtained do not in any circumstances justify drawing any conclusions as to the harmful effects of food treated with microwaves or a predisposition to the appearance of a given pathological condition. As the objective publication of the study in a forthcoming issue of the periodical Alimenta (spring 1992) will show, only one conclusion is unavoidable, namely that it is necessary to undertake, as a matter of urgency, multidisciplinary and multifactorial basic research on the effects on (certain parameters of) health of the consumption of food treated with microwaves in comparison with food prepared using other food technologies or culinary techniques. The major unknown factor is the source of the funds needed to finance such a study.” The proceedings against Mr Weber 16. On 18 March 1992 the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances (“the MHEA”) applied to the President of the Vevey District Court under the Federal Unfair Competition Act (“the UCA”) for an interim order prohibiting Mr Franz Weber, on pain of the penalties provided in Article 292 of the Criminal Code, “from using … the image of a man’s skeleton or any other image suggesting the idea of death … associated with the graphic, photographic, oral or written representation of a microwave oven”, “from stating … that microwave ovens must be abolished and their use banned”, “from stating … that scientific research proves what a hazard food that has been exposed to radiation in a microwave oven is to health and backs up the Journal Franz Weber” or “from stating … that microwave ovens must all be destroyed without exception because food is harmed by these dangerous appliances to such an extent that it causes, in those who consume it, a change in the blood count and leads to anaemia and a precancerous stage”. 17. In an order of 7 April 1992 the President of the Vevey District Court dismissed the application. Firstly, he expressed doubts as to the applicability of the UCA, noting, in particular, the following: “… [the UCA as amended is] not … applicable to all forms of unfair behaviour regardless of the sphere in which it occurs. Its purpose is in fact only to ensure fair, undistorted competition (section 1 UCA) and it applies only in the context, admittedly understood in a broad sense, of economic competition. The Act cannot, on the other hand, govern fields unconnected with that, such as political, sporting or scientific competition … or the expression of philosophical, moral or religious convictions. In that sense, the issue [of the existence] of detriment to a competitive relationship may remain relevant… In the instant case it may be doubted whether such a relationship has really been damaged or threatened by the defendant’s campaign against microwave ovens as that campaign is not in any way directed at any particular manufacturer or distributor of such appliances. … The situation is in this respect very different from the one ruled on in the judgment published in RO 117 IV 193, in which a journalist had given erroneous information about the merits of three rival brands of sewing machine. …” Secondly, he held that, “supposing the UCA to be applicable”, Article 28 c § 3 of the Swiss Civil Code did not allow the relevant interim orders to be made. In this connection, he noted the following reason in particular: “... ... the imminent infringement of which the [MHEA] complains is not, prima facie, apt to cause it any damage affecting it personally. On the other hand, some of its members may suffer damage in the form of loss of turnover. ... there is nothing to show that such damage might be very substantial, and it cannot be presumed that it will be. Indeed, no information has been provided on the turnover in respect of microwave ovens achieved by the members of the association, the relation which that turnover bears to the turnover in respect of other appliances, whether there has been any reduction in the sale of microwave ovens since the articles appeared in issue no. 19 of the Journal Franz Weber or any reconversion to purchases of traditional cookers. Prima facie, it seems doubtful that the defendant’s campaign has entailed any largescale disaffection of the general public. Admittedly, his journal has a large circulation, but it must be read above all by people who have already made up their minds and who in all probability did not envisage buying a microwave oven. As to other members of the public, while they might have heard about Franz Weber’s statements, which have been echoed in the ordinary press, they will also have been aware of the reassuring statements published in particular by the WHO and the OFSP [Federal Office of Public Health] that have also been referred to in the general press. When one sees how ineffective anti-smoking campaigns are, despite being based on undisputed scientific data and being supported by the authorities, it is by no means certain that the defendant’s statements, even if they were to be repeated, could substantially affect the market in microwave ovens for any length of time. ... In the light, inter alia, of the private expert’s report by Professor Teuber [see paragraph 21 below], the clarification given by the WHO and the OFSP and his own modest knowledge of scientific method, the President takes it as read that the research carried out by Dr Hans Hertel is insufficient to support the categorical conclusions which the defendant thought he could draw from it. The most that can be deduced from that research is that it would be appropriate to carry out a more thorough, rigorously methodical survey on a larger number of people. It is clearly unreasonable to affirm, as was done in issue no. 19 of the Journal Franz Weber that it has been scientifically proved that microwave ovens are harmful and that they must be immediately destroyed and their use banned. It nonetheless remains the case that some scientists still have doubts about the safety of microwave ovens. The fact that they are in a minority does not of itself enable one to exclude the possibility that they might be partly right, as this is an area in which no certainty exists. Indeed, when the OFSP’s report is read in full it can be seen that there remain a number of unresolved problems. In these circumstances, and even if it seems highly likely that Franz Weber’s statements are wholly unfounded, I cannot find that it is absolutely clear that that is the case. ... … Lastly, the interim orders sought would appear disproportionate at all events. They would in fact lead to a kind of judicial censorship of scientific research and the conclusions that may be drawn from it, and this is scarcely compatible with the living traditions in this country, in which it is generally considered that it is for one’s peers and not for the courts to assess the worth and significance of a scientist’s work.” The judge nevertheless took formal note of Mr Weber’s undertaking “… not to use in forthcoming publications of his newspaper or in any other publications or at press conferences, public events or presentations to the media images of a skeleton or a cross or tomb in association with the presentation of a microwave oven”. 18. On 14 April 1992 Mr Weber made the following statement (translated from German): “We refer to the summary which appeared in issue no. 19 … of the Journal Franz Weber under the title “Microwave ovens: a health hazard” and certify that Mr Hertel and Mr Blanc cannot be held responsible for either its form or its content, for which sole responsibility lies with the editor. The same applies to the cover page. Furthermore, we should like to point out that the title and sub-title of the research report which followed it were likewise the editor’s responsibility. We must also expressly emphasise that Mr Hertel has never been a member of our newspaper’s editorial staff or paid as such. The fact that Mr Hertel’s name (like Dr Bill Clark’s) appeared in the imprint under the heading Editorial staff instead of under Contributors to this issue was due to a mistake in the editorial office.” 19. The MHEA asked Mr Hertel to publish a statement to the effect that he would no longer make unfair comments on microwave ovens. He did not reply. 20. On 7 August 1992 the association lodged an application under the UCA with the Commercial Court (Handelsgericht) of the Canton of Berne, seeking to have Mr Hertel prohibited, on pain of the penalties provided in Article 292 of the Swiss Criminal Code (imprisonment or a fine) and Article 403 of the Code of Criminal Procedure of the Canton of Berne (a fine of up to 5,000 Swiss francs or imprisonment, in serious cases for up to a year), from stating that food prepared in microwave ovens was a danger to health and led to in the blood of those who consumed it changes that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process, and from using, in publications and public speeches on microwave ovens, the image of death, whether represented by a hooded skeleton carrying a scythe or by some similar symbol. 21. As before the President of the Vevey District Court, the plaintiff association produced a private expert’s report by Professor M. Teuber of the Food Research Institute of the Zürich Federal Institute of Technology. The report, dated 6 March 1992, concludes (translated from German): “Blanc and Hertel’s experiments on the harmfulness of food heated by microwaves and their interpretations of them were not conducted and described according to scientifically recognised criteria. They are of no scientific value; the conclusions drawn from them as to the alleged harmfulness of food cooked by microwaves have no verifiable basis and are unsustainable.” 22. In a judgment of 19 March 1993 the Commercial Court allowed the application. It gave the following reasons (translated from German): “1. … The amended UCA differs from the former enactment in having substantially wider scope. Its key characteristic is its functional approach, based on guaranteeing fair, undistorted competition. That approach is apparent from the new drafting of the Act’s protective aim in section 1 UCA and has led to a new definition of the offence of unfair competition in the general provision of section 2. The requirement of a competitive relationship, for instance, has been removed from the Act. Its personal scope, as apparent from section 2, does not cover only the acts of competitors, suppliers and customers; third parties not involved in such relations may be (independently) liable if their conduct affects relations in the context of economic competition and if, through their statements, they adversely affect the competitive position of the person targeted (see Troller and Troller, Kurzlehrbuch des Immaterialgüterrechts, p. 189). Competition is particularly affected by consumer-protection organisations, but also, for example, by reviewers, art critics and media personalities. Also caught by the Act are the authors of financial analyses, company reports and – what is of importance here – scientific studies, provided that the essential elements of the offence of unfair competition are present (Ernst Zeller, SZW 1/93, p. 23). In the event of inaccurate, misleading or unnecessarily derogatory statements concerning the subject of study, these people will be guilty of unfair competition. The new wording of section 2 UCA has thus put an end to the old controversy as to whether the application of the Act requires the existence of a competitive relationship. Persons unconnected with a sector who interfere in the competition between third parties are likewise caught by the Unfair Competition Act (David, Unlauterer Wettbewerb, p. 169; cf. BGE 117 IV 193: Bernina). In each case, however, it must be ascertained whether the behaviour of the person concerned affects the relations between competitors or between suppliers and customers. The Act is directed at all those whose behaviour or commercial management may have an effect on economic competition. The decisive factor is whether the activity complained of has direct or indirect effects on the competitive position of the person making it or of a third party (Pedrazzini, Unlauterer Wettbewerb, Berne 1992, pp. 32 and 47). Both according to legal writers and in practice, economic relevance in the sense of a potential aptitude to affect competition is taken into account (see H.P. Walter, Das Wettbewerbsverhältnis im neuen UWG, SMI 1992, pp. 169 et seq.). Capability of affecting competition must be determined objectively; it is of no importance whether given behaviour is associated with a subjective intention to affect the market; the decisive factor is whether the action in question is objectively apt to affect competition (Walter, ibid., p. 176; cf. BGE 117 IV, pp. 195 et seq.: Bernina). This was so in the instant case, as was set out above in relation to the question of the plaintiff’s locus standi. Even if there is no certain proof of a connection between the drop in turnover in respect of microwave ovens and the [defendant’s] behaviour, it is clear that the statements and publications complained of in the instant case are apt to diminish sales of microwave ovens and, consequently, to harm the businesses associated with the plaintiff. The objective aptitude to affect competition is therefore established. 2. Section 2 UCA defines as unfair and illegal ‘any conduct or commercial practice ... if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers’. The general provision of section 2 is given concrete expression by the provisions of sections 3 to 8, which describe the special factual ingredients (Sondertatbestände) of the offence. Section 3(a) provides that a person acts unfairly if, in particular, he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements. Unfair competition does not necessarily presuppose either bad faith or fault, but merely an objective breach of good faith (BGE 109 IV 488, 97II 160). A statement is ‘inaccurate’ if it can objectively be seen to be false (Troller and Troller, p. 188). A statement is ‘misleading’ if, while not untrue, it creates a false impression through the use of devious means; as with the risk of confusion in the context of trademark disputes, the yardstick to be used here is that of the usual vigilance and discernment of the customers targeted. A statement may be ‘unnecessarily wounding’ in various ways. Firstly, the manner in which a statement is made may be considered improper if it goes far beyond what would appear reasonable in the light of what had caused the statement to be made. Secondly, even where an accurate factual basis exists, the value judgments expressed may be unlawful if they appear unjustified on the facts. Lastly, a statement may also be wounding if it is inaccurate or is mainly and without good cause intended to harm another. Criticism that is impermissible in form, content or aim is therefore unacceptable… It has already been held in ZR 27/1928 no. 163 … that the description ‘dangerous’ was derogatory in character. Advertising based on fear, using expressions such as ‘take X, otherwise it will be too late’, ‘don’t take any risks’, ‘better too early than too late’, ‘tooth decay is lurking’, or even simply ‘keep your hair’ is also unacceptable… … … it is certain that it cannot be said that it is scientifically proved that food prepared with a microwave oven constitutes a danger to health and is carcinogenic. To date, there has been no scientific evidence that such a danger exists. The defendant’s assertions are not corroborated either by his own research – which did not meet generally accepted scientific standards – or by that of other, respectable scientists. The opposite would seem to be nearer the truth, as is shown by the observations of the World Health Organisation and the Federal Office of Public Health. In that regard, the fact that Professor Blanc clearly dissociated himself from the conclusions drawn by the defendant from their joint research is likewise significant. The defendant’s statements that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic process are manifestly false and untrue and consequently inaccurate within the meaning of section 3(a) UCA. The application must therefore be allowed. The applicant remains of course free to base his propositions on new scientific findings. … There would nonetheless have been a breach of the UCA even if the defendant’s belief had been objectively accurate since, as has already been said, section 3(a) UCA also prohibits misleading or unnecessarily wounding statements. Such statements were made in the present case as will be explained in greater detail under point 4 below. 3. The Court cannot share the opinion of Professor Peter Nobel, published in SJZ 88, p. 251 and cited by the defendant, that for an unfair act to affect competition within the meaning of section 2 UCA there must be a corresponding intention, that is to say a subjective wish to have an impact on competition. That view is inconsistent with the aim pursued by the UCA, which is to guarantee, in the interests of all the parties concerned, fair, undistorted competition (see section 1 UCA); those concerned are thus competitors, customers and the general public (‘tripartite nature’ of competition law and ‘equivalence’ of the three interested groups, Botschaft, pp. 35 and 50). There is consequently nothing in the Act to support that opinion. An amendment to the Act would be necessary for that (cf. Roger Zäch, ZSR 111 I, 1992, pp. 173 et seq., with reference to the Federal Council’s reply to the motion of a national councillor, Peter Vollmer, concerning a revision of the UCA, NZZ of 15.1.1992). … The principle of good faith mentioned in the general provision of section 2 UCA, which is decisive of the issue of fairness and therefore of legality, must be construed in the light of the Act’s purpose and the special factual ingredients of section 3(a) UCA. These define in greater detail the unlawful conduct, for which no fault is required, constituting the tort of ‘unfair competition’. No competitive relationship between the ‘tortfeasor’ and the ‘victim’ is required under the Act (see above). All that is needed is behaviour apt to affect competition; a very weak link with an economic activity will thus suffice (Pedrazzini, Unlauterer Wettbewerb, p. 33; cf. also BGE 117 IV, pp. 193 et seq.: Bernina); that is a consequence of the functional conception that governed the revision of the Act. The new UCA was intended to enlarge the sphere of protection afforded by the Act. Thus, in the light of the provision setting out the aim pursued by the Act and of the general provision of the Act, the requirement of an intention to affect competition is incompatible with the definition of the tort of unfair competition within the meaning of the general provision of section 2 UCA, as it is not contained in that definition (cf. Zeller, loc. cit., p. 23). Anyone who in his media work seeks to cause a scandal or a sensation is also caught by the Act. Freedom of the press does not relieve those concerned from the obligation to comply with professional ethical standards – on the contrary, it takes such an obligation for granted (Pedrazzini, loc. cit. p. 239, cf. Zeller, loc. cit., p. 25). Even if the Court were to accept Nobel’s opinion, it would not in the instant case be led to a different conclusion. Intention (Absicht) is a particular form of knowledge that one is acting wrongly (Vorsatz). For such intention to exist, it suffices that the person concerned is aware of the possibility that the act will be carried out and that he accepts that possibility (recklessness; cf. Stark, Ausservertragliches Haftpflichtrecht, Skriptum, notes 448 et seq., pp. 101 et seq.). As a subscriber to the Journal Franz Weber the defendant knew to whom he was sending the research paper for publication. He thus accepted the simplistic and exaggerated interpretation of the published article, and he also endorsed the publication in its entirety since at no stage did he dissociate himself from even part of it in writing but, while not considering it to be 100% accurate, nevertheless approved it with the representation of the Reaper. 4. Since the scope of the UCA is determined by the mere potential aptitude to affect competition, acts performed in the exercise of fundamental rights in the field of ideas are covered by it, even when they have only a remote link with economic activity; only acts that are no more than ideas fall outside the scope of the statute, provided that they are confined to a strictly personal sphere of activity (Pedrazzini, loc. cit., pp. 33 et seq., Urs Saxer, AJP 1993, p. 606). In that respect, whether or not the activity concerned is remunerated is irrelevant. However, an act will not be caught by the UCA merely because it is performed outside the private sphere. It is necessary that there be a link, however weak, with an economic activity. Acts that are performed for purely disinterested ends are not covered by the UCA. Such would be the case, for example, with associations whose activity is wholly disinterested. An association will be disinterested if it pursues altruistic aims and does not deal in the (economic) market. If it does so deal, even without seeking to make a profit, it will lose the exemption (Pedrazzini, loc. cit. p. 33). The freedom to carry out scientific research, which can be considered a fundamental right (see Jörg Müller, Die Grundrechte des Schweizerischen Bundesverfassung, pp. 122 et seq.) has not been infringed in the instant case. The defendant was and remains entitled to pursue his research. The majority of legal writers consider that scientific freedom includes the freedom to carry out research, to teach and to use the result of research done by others (see Müller, loc. cit.). In that regard, it is necessary to distinguish scientific freedom from the freedom to communicate to others the knowledge gained. Like practically all fundamental rights, this freedom of expression (as an unwritten fundamental right) is not, however, without limits in its application. It is subject to restrictions, especially in the sphere of the mass media, by the legal order, which provides for the protection of reputation in the Criminal Code and for protection of all aspects of the personality, including economic ones, in the Civil Code and the UCA (see Müller, loc. cit., pp. 106 et seq.; BGE 117 IV 193: Bernina). Scientific freedom does not therefore justify publication – especially in non-specialist periodicals (publication in specialist reviews would have to be considered differently) – of provisional results of research that are misleading or devoid of sound scientific basis and do not enable conclusions to be reached with certainty. Scientific researchers must be aware of their responsibilities and give consideration to the issue of what status laymen will give to the expression of their opinion. These constraints apply to the defendant likewise. The mere fact that the application of a statute affects the exercise of a fundamental right by no means signifies that the restriction of that right is unlawful. When it enacted the UCA, the legislature knew perfectly well that there was a risk that the statute would come into conflict with the protected area of intellectual freedoms. That is why section 14 UCA provides, by way of a cross-reference to Articles 28 c and 28 f of the Civil Code, that preventive measures against periodicals may be ordered only in the strictly limited circumstances set out in Article 28 c § 3 of the Civil Code. In the absence of more detailed provision, the assumption must be that no privilege should attach to facts such as those in the instant case. Independently of that issue, it must also be observed that, on the basis of the principle that there is no hierarchy of fundamental rights (see Rohrer, Die Beziehung des Grundrechten untereinander, thesis, Zürich 1982, pp. 104 et seq.), it is necessary to weigh against the fundamental rights relied on by the defendant the right to freedom of trade and industry. An essential feature is how language is used to communicate a scientific opinion when knowledge is still uncertain and, for example, is based solely on sample surveys or experiments involving small numbers of people (only eight in this instance) who do not represent a cross-section of the population. The more clear-cut the reports of opinions, the stricter are the requirements to be made of the linguistically correct representation of the opinions concerned. It is also significant that, even after the event, the defendant did not distance himself from gross simplifications and exaggerations in the article or from the image of the Reaper with a microwave oven, which appears on every page of the research paper. Since the defendant has identified himself with the article in its entirety, the plaintiff’s application must, in terms of competition law, be allowed. Through his assertions, which have been mentioned in detail above, and the use of the image of the Reaper, for which he is liable as he knew the style of the review and accepted and approved that exaggerated representation, the defendant has, irrespective of whether the substance was true, overstepped the acceptable limits and has thus acted ‘unnecessarily woundingly’ within the meaning of section 3(a) UCA. By combining a tabloid-style report with scientific comment he has also misled the intended readership. In particular, the image of the Reaper and statements such as ‘microwave ovens are more harmful than the Dachau gas chambers’, ‘… you are exposing yourself to a slow death…’, or ‘… it is certain that you will die from cancer…’ … amount to unacceptable playing on the fear of death. The defendant himself had to admit that the journalist from the Journal Franz Weber had gone a bit too far and that his article was a little tendentious. He said that he had not liked that very much as a scientist, but the reporter had nonetheless been right. It was sometimes necessary to use a journalistic style to wake people up... … 5. Among other forms of protection, the civil law affords the possibility of applying for an injunction (Unterlassungsklage). The purpose of such an application is to obtain from the court an order prohibiting the defendant from interfering in the plaintiff’s sphere of interest. Such an order may concern existing or continuing interference and threatened interference. The court may allow such an application irrespective of whether damage has been caused (Troller and Troller, p. 105, BGE 104 II 134). Applications may be lodged and injunctions issued only in respect of precisely defined acts which the defendant has committed and is likely to continue to commit or is about to commit (BGE 93 II 51). That is clearly true in the instant case, especially as the defendant has expressly stated that he will continue to follow that route scientifically … and has not distanced himself from the publications in issue. To the application for an injunction there may be joined an application for an order that, if he breaches the injunction, the defendant shall be punished with imprisonment under Article 292 of the Criminal Code or a fine (BGE 79 II 420). That penalty must be supplemented by the one provided for in Article 403 of the Code of Civil Procedure. …” 23. On an application by the applicant, the Federal Court (First Civil Division) delivered the following judgment on 25 February 1994 (translation from German): “… 3. The appellant submitted that the UCA was not applicable in the instant case since the statements complained of were made disinterestedly with a view to protecting public health and not in a context of competition. (a) The UCA is intended to guarantee, in the interests of all the parties concerned, fair, undistorted competition (section 1). Consequently, any conduct or commercial practice is unfair if it offends the principle of good faith and affects relations between competitors or between suppliers and customers (section 2 UCA) or is apt to affect them (Cherpillod, ‘L’application de la loi contre la concurrence déloyale aux journalistes’, résumé of a lecture of 28 January 1992, given to the Swiss Copyright and Media Association, p. 7). When the UCA is applied with a view to preventing distortions in competition in the private sector, however, the conduct of persons who are not in competition with the supplier or customer affected may also be classified as unfair. That is indisputably the position according to current legal theory and the case-law (BGE 117 IV 193 E. 1, pp. 195 et seq. and references, 116 II 463 E. 4a, p. 470; Nobel, Zu den Schranken des UWG für die Presse, in SJZ 88/1992, pp. 245 et seq.; Schluep, Die Europaverträglichkeit des schweizerischen Lauterkeitsrechts, in Un droit européen de la concurrence déloyale en formation, pp. 67 et seq. and p. 81). Notwithstanding that no competitive relationship is required, only conduct that can be described as an act of competition is prohibited, that is to say acts which are objectively aimed at affecting competitive relationships and not those which take place in a wholly different context. For the purposes of the UCA the conduct of the tortfeasor must therefore be related to the market or competition (‘marktrelevant, marktgeneigt oder wettbewerbsgerichtet’ – Schluep, loc.cit.). Competition can only exist where the action of the person concerned has, or is apt to have, an effect outside the private sphere (Pedrazzini, Unlauterer Wettbewerb, p. 33). Consequently, the only acts that are competition-related are those which increase or reduce the market share or the rate of success in finding customers of businesses formed with a view to profit or which objectively pursue those aims (see David, Schweizerisches Wettbewerbsrecht, 2nd ed., 1988, p. 29). The decisive factor, as the court below rightly pointed out, is economic relevance in the sense of a potential aptitude to affect competition; for that purpose, an objective aptitude is sufficient and it is of no importance whether there was a subjective intention of intervening in the economic sphere. That being so, it is of no help to the appellant to rely on the academic legal theory that, although the need for a competitive relationship has been dispensed with, an act committed with the intention of affecting competition is required in all cases for there to be an infringement of the UCA (Nobel, loc. cit., passim). Quite apart from the fact that that theory entails the risk of confusion between the concept of illegality and elements of the notion of fault, the appellant is confusing motive and intention. He does not deny that he is seeking to protect consumers by influencing their behaviour in the market and thereby affecting the sales market for the product he criticises. That clearly shows a competitive intention, even if it is prompted by idealistic motives and not by the pursuit of gain. (b) Scientific research and publications are not in themselves directed at competition if they remain within the academic context (David, loc. cit.). They so become, however, if the target readership may objectively construe the scientific opinions as being designed to influence the behaviour of market players and, in particular, of customers. It is unnecessary to explain this in greater detail where science is used as a disguised means of advertising and where scientific knowledge may serve to boost a product’s sales (Baumbach and Hefermehl, Wettbewerbsrecht, 17th ed., 1993...). The same must apply, however, where allegedly scientific statements are used in a competitive context to influence negatively the sales of a particular product through denigration of it. Such statements likewise amount to acts of competition covered by the UCA and are subject to its requirement of fairness (Baumbach and Hefermehl, loc. cit.). The statements held against the applicant are, in both content and presentation, regard being had in particular to the readership of the periodical concerned, clearly intended to influence the market since, at least objectively, they are unmistakably aimed at deterring consumers from buying and using microwave ovens. They are thus apt to affect competition. That is why the Commercial Court rightly considered that they came within the scope of the UCA and therefore examined whether they should be described as unfair within the meaning of that Act. 4. (a) The appellant considers that the order prohibiting his using symbols evoking death is contrary to federal law as it was not he who was responsible for the use of the image of the Reaper in the Journal Franz Weber in respect of which the injunction was imposed and so no recurrence is likely. The Commercial Court emphasised that it remained unproved that the appellant had taken part in the design and editing of the periodical or that his approval had been sought before the article in question appeared. The appellant had, however, become aware of the tenor of the article because he was a subscriber to the review but had not distanced himself from it in any way and had even said, at the trial, that he liked the image of the Reaper. The court concluded that the appellant had knowingly accepted his research paper being used in a simplified and exaggerated manner and had approved the publication in its entirety. … 5. The Berne Court prohibited the appellant ‘from stating that food prepared in microwave ovens is a danger to health and leads to changes in the blood of those who consume it that indicate a pathological disorder and present a pattern that could be seen as the beginning of a carcinogenic process’. The appellant says that that prohibition is contrary to federal law since the prohibited statement is not unfair within the meaning of the UCA and enjoyed the protection afforded to fundamental rights. … (b) As already indicated, given the readership to which his statements were addressed and the scientifically unsophisticated content of those statements, the appellant has left the purely academic sphere and entered the realm of competition. He is therefore subject to the fairness requirement laid down by the UCA. Section 3(a) UCA provides that a person acts unfairly if he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements. In the appellant’s defence, it must admittedly be acknowledged that it is not always easy to establish the degree of scientific truth of an assertion, since in this sphere of knowledge, what is held to be true today will often be superseded tomorrow and true again the day after (Baumbach and Hefermehl, loc. cit., ...). That does not, however, mean to say that ostensibly scientific views on one’s own work or the work of others in the competition field must always unconditionally be considered fair. When an opinion relating to the market refers to a question that is professionally controversial and is presented as being objectively accurate or scientifically confirmed, that means that the party concerned has opted in favour of a particular opinion and is ready to answer for its accuracy also in the context of competition (BGH, 23.10.1971, in GRUR 1971, pp. 153 et seq., E. IV/2, p. 155). Positive or negative advertising containing scientific data must, accordingly, in the public interest and in order to ensure effective competition, only be accepted if the data reflect established scientific knowledge or at least if the advertising clearly states that there are differing opinions. If there is no absolute guarantee that the scientific data are correct, the uncritical publication of them is at least deceptive and is accordingly misleading within the meaning of section 3(a) UCA (Baumbach and Hefermehl, loc. cit., ...). That was so in the instant case. According to the Commercial Court there is absolutely no scientific confirmation of the applicant’s argument; on the contrary, it has been mostly rejected. To hold it out as accurate in the context of competition is unacceptable under section 3(a) UCA, and accordingly the injunction issued by the Commercial Court does not infringe any provision of federal law. (c) There can be no question of the UCA’s having been applied in breach of the Federal Constitution or the European Convention. Statutes must, in particular, define fundamental rights and other, conflicting duties of the State so that these two concerns of constitutional law may be taken into consideration to the greatest possible extent (Müller, Elemente einer schweizerischen Grundrechtstheorie, p. 104). This notion of regulation and the values underlying it must also be taken into account in the drafting of statutes. The smooth operation of competition and economic freedom, freedom of expression, scientific freedom and freedom of the press must be guaranteed as well as possible, but at the same time limited so that the various constitutional objectives may be reconciled in practice. In that regard, it should be noted that the UCA provides a remedy only in respect of unfair statements, and the meaning and purpose of freedom of expression or freedom of the press cannot be to legitimise unlawful public assertions of that kind. (Hotz, Zur Bedeutung des Bundesgesetzes gegen den unlauteren Wettbewerb (UWG) für die Massenmedien, in SJZ 86/1990, pp. 26 et seq.). Anyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but, where competition is concerned, he may not claim to have the truth on his side where the opinion he is putting forward is disputed. An opinion which has not been confirmed scientifically must in particular not be misused as a disguised form of positive or negative advertising of one’s own work or the work of others. In the present case, that is all the more true as the Commercial Court expressly left the applicant free to base his proposition on new scientific findings. 6. The appeal must therefore be dismissed…” 24. Section 1 of the Federal Unfair Competition Act of 30 September 1943 reads as follows: “1. Any abuse of economic competition resulting from deception or any other conduct contrary to the principle of good faith shall be deemed to be an act of unfair competition within the meaning of this Act. 2. The principle of good faith is not complied with where, for example, a person (a) denigrates others or the goods, work, activity or business of others by making inaccurate, misleading or unnecessarily wounding statements; …” 25. The Act of 30 September 1943 was repealed by the Federal Unfair Competition Act of 19 December 1986, the relevant provisions of which are as follow: Section 1 “This Act is intended to guarantee, in the interests of all the parties concerned, fair, undistorted competition.” Section 2 “Any conduct [Verhalten] or commercial practice [Geschäftsgebaren] shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers.” Section 3 “A person acts unfairly if, in particular, (a) he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements; …” Section 9 “1. Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill, credit, professional reputation, business or economic interests in general, may apply to a court: (a) to prohibit the act if it is imminent; (b) to order that it cease, if it is still continuing; (c) to declare it unlawful, if the interference it has caused persists. 2. He may, in particular, seek an order that a rectification or the judgment be communicated to third parties or published. 3. He may also, in accordance with the Code of Obligations, bring an action in damages and for reparation of non-pecuniary damage and require that any gain be handed over in accordance with the provisions on intermeddling.” Section 10 “… 2. The actions provided for by section 9, sub-paragraphs 1 and 2, may also be brought by: (a) professional associations and economic associations whose memoranda and articles of association authorise them to defend the economic interests of their members; …”