Mobile masts and grid references get to Europe

29 July 2011 by

Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment

I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.

But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?

Opinions differed on this, which is why it reached the Luxembourg Court. The Information Commissioner, the Tribunal, the Administrative Court, and 2 members of the Supreme Court preferred individual balancing, whereas the Court of Appeal and a majority of the Supreme Court opted for the cumulating approach.

Now the European Court of Justice, interpreting Directive 2003/4/EC on public access to environmental information, has gone cumulative, following AG Kokott’s opinion. As I pointed out before, this tends to make it easier to exempt information from disclosure; 50 grams of public interest outweighs 40 grams of public security, and then outweighs 40 grams of intellectual property, but it falls short if you add the latter two exemptions together.

The strongest argument in a finely-divided point of construction was that one cumulates the various elements of public interest on the other side of the balance as set out in the 1st recital of the Directive, and so it would be odd if you did not cumulate the exemptions. And in a somewhat anodyne judgment, the CJEU has agreed with the AG.

As I said, the issue arose in the context of epidemiological studies. An independent investigation was conducted by experts into the risks connected with mobile phones. Their report identified as matters of public interest the location of base stations. So the UK Government set up a website called ‘Sitefinder’ giving their location, using information voluntarily provided by mobile phone operators. You can search a map square, by inputting a postcode, town or street name, for information about the base stations within it. But the website only shows the approximate location in each square of each base station, and does not show either the precise location of the base station to within a metre or the vertical position of the base station (i.e whether it is at street level or on top of a structure or building). The difference between this publicly available information and the precise details needed by the epidemiologist led to this long drawn-out saga.

The CJEU has of course only decided the issue of principle. So the case has to go back to the domestic courts to apply the law, and decide whether the information is revealed.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;

  1. John Dowdle says:

    Love the illustrative picture, based on good old Marlboro country !!

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: