[Press release] Phonegate scandal: a criminal complaint against HMD GLOBAL OY (NOKIA)

After XIAOMI, a new complaint filed against HMD GLOBAL OY (NOKIA) by the association PHONEGATE ALERT and a new collective action launched

While a first complaint was filed on April 15, 2019 against the Chinese mobile phone manufacturer XIAOMI, a second complaint* is now being filed against the manufacturer HMD GLOBAL OY. Since the end of 2016, the Finnish company has been marketing NOKIA mobile phones, having been granted a license to use its brand.

We explain the reasons for this complaint and its objectives.

A new violation of the SAR regulations indicated by ANFR

Twice in a few days, the National Frequencies Agency (ANFR) announced, by means of press releases, that it had asked the Finnish company HMD GLOBAL OY, which manufactures the Nokia 5 and Nokia 3 smartphones, for a mandatory update following controls that revealed significant exceedances of the Specific Absorption Rate (SAR) “trunk”, a first time on April 5, 2019 for the Nokia 5, followed by a new incident revealed on April 26, 2019 for the Nokia 3 (TA-1032DS).

In addition, following the update of his phone, the user is doubly harmed, the capacities of his mobile phone being considerably reduced.

The lowering of the SAR will have the following consequences:

• a degradation of connectivity to mobile operators’ networks, chopping or cutting off the conversation or, worse, not allowing to be reached or phoned in areas of average or poor coverage;
• regarding data downloads, in the same way it will degrade the throughput level with direct implications depending on the applications used.

 

Nokia 3 phone:

	Initial value	Value after update
System version	00WW_1_47I	00WW_4_43E
Measured SAR « trunk »	2.37 W/kg	1.64 W/kg

Nokia 5 phone:

	Initial value	Value after update
System version	00WW_3_320	00WW_6_12E
Measured SAR « trunk »	2.24 W/kg	1.81 W/kg

Irregular tests leading to truncated SAR measurements

With reference to the official German database published by the Bundesamt für Strahlenschutz (BFS – Federal Office for Radiation Protection), it is noted that, like the Chinese manufacturer XIAOMI, the smartphones sold by the Finnish manufacturer HMD GLOBAL OY have numerous regulatory irregularities. The new European regulation (Directive 2014/53/EU) requires since June 2016, with a transitional period of one year until June 2017, measurement of the SAR trunk at a maximum distance of 5mm.

However, four new models from the manufacturer HMD GLOBAL OY (Nokia 1, 2.1, 3.1, and 5.1) were able to be placed on the market from June 2018, in violation of French and European regulations. In order to display low SAR levels, these four models were measured 15mm from the body (instead of 5mm).

This 10mm difference will necessarily increase the real SAR measurement, which will significantly exceed the regulatory limit for each of the smartphones concerned. This will obviously have possible consequences for the health of users.

MODELS	Measured SAR (head)	Measured SAR (body)
Nokia 1 (Type TA-1066)	0.62	0.58 (measured at 1.5 cm)
Nokia 2.1 (Type TA-1086)	0.47	0.34 (measured at 1.5 cm)
Nokia 3.1 (Type TA-1070)	0.41	0.38 (measured at 1.5 cm)
Nokia 5.1 (Type TA-1076)	0.29	0.61 (measured at 1.5 cm)

 

No information for consumers

In further research, we were equally surprised to find that the Finnish manufacturer also did not comply with the obligation to provide information in its manuals on mention of the SAR and the measuring distance. This reinforces the suspicion of misleading commercial practices.

A new collective action for Nokia users

As in the XIAOMI case, the owners and users of the smartphones concerned can assert their rights by joining the collective action launched on the platform V for Verdict.

Two phones concerned for exceeding the SAR “trunk” (they were pinned above the regulatory limit of 2W/kg):

• Nokia 3
• Nokia 5

Four phones concerned for non-compliance with the SAR measurement at 5mm : 

• Nokia 1
• Nokia 2.1
• Nokia 3.1
• Nokia 5.1

For Elias Bourran**, attorney at the Paris Bar :

“The company HMD GLOBAL OY performed SAR measurement tests at irregular distances from the body. The regulations require a maximum SAR measurement at 5mm and they continue to do so at 15mm. This is of course prohibited and they must be penalized for it.

Therefore, with regard to offenses:

• Deception, because they are accused of having misled consumers, who have bought their phones, about the substantial qualities of the phone. Consumers bought a product that they thought was in compliance with the regulations. However, it is not.
• Misleading commercial practice, as HMD GLOBAL OY (NOKIA) is accused of advertising and presenting its products as complying with regulations. However, they are not. They are therefore accused of false advertising and false presentations of their products likely to mislead the consumer about the substantial qualities of the products.
• Finally, endangering the lives of others. The thermal effects of waves are a potential risk to the health of users above a certain threshold, which is why the limits are imposed. By exceeding these thresholds, the manufacturer is accused of having endangered the lives of its users. »

For Elisabeth Gelot, attorney at the Lyon Bar and co-founder of V for Verdict :

« This collective action is the second in the PHONEGATE affair, but not the last. It is imperative that the judge protects consumers. These procedures must also compensate for the lack of systematic control of phones placed on the market by public authorities, through dissuasive sentences. »

For Dr. Marc Arazi, President of Phonegate Alert (our association aims to protect the health of mobile phone users):

“Over the past three years, we have witnessed serious breaches by the National Frequencies Agency (ANFR) in its responsibilities to ensure the protection of the health of mobile phone users. This is made possible by a serious absence of political will on the part of the government to confront manufacturers in this sector, particularly on the eve of the development of 5G in France. It will therefore be up to the judiciary to respect the regulations and the health of all,”

Thanks to V for Verdict’s digital platform, users who are victims of HMD GLOBAL OY can join the collective action brought by Attorney Elias Bourran in order to request: reimbursement of their phone, and damages (physical and moral damages).

 

* Incubation: a complaint on behalf of the association Phonegate Alert was filed with the public prosecutor’s office in Lyon. At least 30 plaintiffs must be assembled for the collective action to start, the attorney to take charge of the case and represent each of the plaintiffs in the criminal proceedings against HMD GLOBAL OY (NOKIA)

**Attorney Elias BOURRAN, member of the Phonegate lawyers’ consortium, he currently focuses on business law and criminal business law, in particular by advising and representing  victims of infractions before all criminal courts on the national territory .«Collective action contributes to the democratization of access to financial compensation without having to advance significant legal fees.»