In a judgment rendered on September 22, 2022, the seven plaintiffs, Tracey Ariel, Claire O’Brien, Erika Patton, Zoe Patton, Alex Tasciyan, Mathew Nucciarone and Vito Decicco, have been given a win by Judge Christian Immer. They will therefore be allowed to launch a class action against the manufacturers of Apple and Samsung smartphones, in the context of the Phonegate scandal.
The action had been initiated in September 2019 by Attorney Charles O Brien, following the revelations in August 2019 of American journalist (and 2008 Pulitzer Prize winner) Sam Roe in the Chicago Tribune.
Just recently (end of August 2022), in the U.S. Phonegate case, a ruling did not hold the giant Apple accountable for the overexposure of users of its iPhones.
Phonegate could cost Apple and Samsung dearly
The Canadian decision also authorizes a claim for damages against Apple Canada, Apple Inc., Samsung Electronics Canada and Samsung Electronics Co. Ltd. As a result, the seven plaintiffs will have the status of representatives of the class defined by the following wording:
« Any physical person residing or domiciled in Quebec, who has, since September 11, 2016, purchased or leased and used an Apple or Samsung cellphone. »
It is therefore nearly 8.5 million people who are concerned, knowing that according to a recent study, 81% of Quebec adults have a smartphone – iPhones and Android smartphones share the Quebec market. Now, millions of consumers are potentially and directly concerned by this judgment and by obtaining damages.
Questions that need answering
Judge Immer identified several primary issues of fact and law that will need to be addressed collectively:
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Do the defendants’ phones cause the SAR level to exceed 1.6W/kg on 1 gram of tissue and if yes, at what separation distance ?
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Does this pose a risk or danger to the user ?
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Can RF exposure, regardless of separation distance, cause adverse health effects thereby constituting a risk or danger ?
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Should Apple and Samsung have provided instructions to protect users against such risks or danger, thereby triggering their liability under s. 53 CPA ?
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Is this an important fact which Apple and Samsung failed to mention to users in violation of s. 228 CPA ?
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Should Apple or Samsung pay punitive damages ?
In reading the recitals, we are really pleased to see that the smartphone test documents that we obliged ISED to turn over to us were incorporated into the analysis of this case.
The Canadian authorities must react!
Sharon Noble, Canadian Board Member of the NGO Phonegate Alert, appeals to the Canadian government:
“The Department of Innovation, Science and Economic Development (ISED), formerly Industry Canada, is responsible for testing wireless devices to ensure they meet Health Canada’s Safety Code 6 standards, which are among the lowest in the developed world. As a result, 9 out of 10 cell phones on the Canadian market have SAR levels well above regulatory limits in actual use (in contact or near contact with the body). The ISED protocol, still today, allows to test phones up to 15 mm from the “body”. This ruling is therefore an important step forward that must be taken into account by the Canadian government very quickly in order to put in place regulations that will really protect the health of users of cell phones and connected objects.”
“This is a big win”
For Attorney Charles O Brien who brought this action to court and whom we have asked to represent us:
“This is a big win as the judge is allowing the case to proceed to the merits stage to answer the specific questions he summarizes in his conclusion. As a practical matter, this judgement will almost certainly be appealed by defendants. Nevertheless, until such appeal is heard, we have won.This ruling (should it survive appeal) earns us the opportunity to defend the claims at the merits with evidence and expertise as well as legal argument. Also, it would mean customers would be able to register as class members. This ruling should make international news in EMF circles and validates the important work done by the entire EMF community.”
All smartphone manufacturers will soon be concerned
For his part, Dr. Marc Arazi, who revealed the scandal in 2016 and is author of the book « Phonegate », recently translated into English:
“We are pleased with this favorable ruling, which opens up important prospects for the recognition of the Phonegate scandal in Canada as well as in the rest of the world. For the moment, Apple and Samsung are concerned, but we hope that, in the long run, all manufacturers and cell phone operators will be held accountable for their actions that knowingly endanger the health of billions of users. »
