CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 août 1998

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font-size:12pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s3133A7C8 { font-family:Arial; color:#0069d6 }         CASE OF HERTEL v. SWITZERLAND   (59/1997/843/1049)                       JUDGMENT   STRASBOURG     25 August 1998       In the case of Hertel v. Switzerland [1] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court B [2] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   F. Matscher ,   Mr   A. Spielmann ,   Mr   N. Valticos ,   Mrs   E. Palm ,   Mr   L. Wildhaber ,   Mr   K. Jungwiert ,   Mr   J. Casadevall ,   Mr   V. Toumanov , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 28 March and 24 June 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention, by a Swiss national, Mr Hans Ulrich Hertel (“the applicant”), on 29 May 1997 and thereafter by the European Commission of Human Rights (“the Commission”) and the Government of the Swiss Confederation (“the Government”) on 3 June and 15 July 1997 respectively. It originated in an application (no. 25181/94) against Switzerland lodged by the applicant with the Commission under Article 25 on 13   September 1994. Having been designated by the initials H.U.H. during the proceedings before the Commission, the applicant subsequently agreed to the disclosure of his identity. The applications and request referred to Article 48 of the Convention, as amended by Protocol No. 9, which Switzerland has ratified. The object of the applications and request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1, 8 and 10 of the Convention. 2.     In response to the enquiry made in accordance with Rule 35 § 3 (d) of Rules of Court B, the applicant designated the lawyer who would represent him (Rule 31). 3.     The Chamber to be constituted included ex officio Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of the Convention), and Mr   R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 3 July 1997, in the presence of the Deputy Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr A. Spielmann, Mr   N. Valticos, Mrs E. Palm, Mr K. Jungwiert, Mr J. Casadevall and Mr   V.   Toumanov (Article   43 in fine of the Convention and Rule 21 § 5). Subsequently Mr   Ryssdal, who had died on 18 February 1998, was replaced as President of the Chamber by Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 6, second sub-paragraph). 4.     As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 5 and 12 December 1997 respectively. On 16 January 1998 the Secretary to the Commission indicated that the Delegate did not wish to reply in writing. 5.     On 2 March 1998 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 26 March 1998. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)   for the Government Mr   P. Boillat , Head of the International Affairs       Department, Federal Office of Justice,   Agent , Mr   J. Lindenmann , Acting Head of the Human Rights       and Council of Europe Section,       Federal Office of Justice,   Adviser ; (b)   for the Commission Mr   M.A. Nowicki ,   Delegate ; (c)   for the applicant Mr   R. Schaller , of the Geneva Bar,   Counsel .   The Court heard addresses by Mr Nowicki, Mr Schaller and Mr Boillat. AS TO THE FACTS I.   the CIRCUMSTANCES OF THE CASE 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. The research paper published by the applicant and Professor   Blanc and issue no. 19 of the Journal Franz Weber 1.   The research paper published by the applicant and Professor Blanc 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.” 2.   Issue no. 19 of the Journal Franz Weber 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 H 2 O and CO 2 (aerobic respiration) there appears, inter alia , the cell poison H 2 O 2 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 H 2 O and CO 2 (aerobic respiration) there appears, among other things, the cell poison H 2 O 2 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.” B.     The proceedings brought against Mr Weber and Mr Hertel by the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances 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 large ‑ scale 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.” 2.   The proceedings against Mr Hertel (a)     In the Canton of Berne Commercial Court 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