Ofcom's Sitefinder: rumours of its death have been greatly exaggerated?

Ofcom Sitefinder (click to visit)

I’ve always had more than a passing interest in the Ofcom Sitefinder, because prior to re-qualifying as a lawyer I was a communications engineer.  I was also a specialist radiation safety officer.  Sitefinder allows you to search any location or postcode in the UK to discover the location of any mobile phone base station, together with details about its operator, operating frequencies and maximum transmitter power (e.i.r.p. per channel).  From this site I can see that the nearest base station to my house in Portsmouth is about 600m away.  It’s details on Sitefinder show:

Name of Operator	3
Operator Site Ref.	PO0032
Station Type	Macrocell
Height of Antenna	21 Metres
Frequency Range	2100 MHz
Transmitter Power	24.46 dBW
Maximum licensed power	32 dBW
Type of Transmission	UMTS

 

Whilst there is still ongoing discussion and medical research about what are safe levels of exposure to non-ionsing radiation, the maximum exposure levels recommended by the International Commission on Non-Ionizing Radiation Protection are widely followed. The safe exposure levels for members of the public for 10GHz, which are lower than that for 2.1GHz, are easily understood as it is set at 10W/m². As 3 transmits from the Cosham base station at 24.46 dBW, or 279.3W, and as all mobile phone (UHF) radio waves use direct radio propagation so that the power falls proportionally to the square of the distance from the transmitter, I would be perfectly safe under ICNIRP guidelines, assuming that I have roughly a 1m² profile, at a distance of 5.3m from the antenna (which would be difficult, as its 21m high).

Sitefinder is interesting from a legal point of view as it is the subject of a request for information under the Environmental Information Regulations 2004 (“EIRs”) to Ofcom, which was refused. The applicant for the information then made an appeal to Ofcom for an internal review, who upheld the initial decision to refuse the request. The applicant then appealed to the Information Commissioner, who was minded to order the disclosure of the relevant information (Case Ref: FER0072933, 11 September 2006). This was then appealed to the Information Tribunal (now known as the First-Tier Tribunal (Information Rights)), who also ordered disclosure (EA/2006/0078, 4 September 2007). Ofcom appealed to the High Court, where the appeal was dismissed ([2008] EWHC 1445 (Admin), 8 April 2008), then to the Court of Appeal ([2009] EWCA Civ 90, 20 February 2009) and the Supreme Court ([2010] UKSC 3, 27 January 2010), who referred a question to the Court of Justice of the European Union (“CJEU”) (Case C-71/10). The Sitefinder case will therefore be the first EIRs case to go the full distance.  On 10 March 2011 Advocate General Kokott gave her opinion. The story should therefore, after over 6 years, soon come to an end.

Initial Request and Internal Review

The EIRs provide for wider access to information that falls within the wide definition of environmental information included in the EIRs, than the Freedom of Information Act 2000 (“FOIA”) permits.  Consequently, the information request made by an information officer from Health Protection Scotland on 11 January 2005 requesting national datasets of the full details of each mobile phone base station within the Sitefinder database under the FOIA, was correctly processed by Ofcom (being a request for information on factors such as radiation – EIRs, reg.2.1(b)) under the EIRs.  The request was made because Sitefinder itself only permits users to research details within postcode areas, with no national or regional lists or exact details of base station grid references.

As a result of the initial request and request for internal review dated 25 February 2005, a number of exemptions under EIRs came into play, particularly:

• the public safety and national security exemption at reg.12(5)(a) – the public interest in safeguarding the location of all TETRA sites, and hence all police and emergency services communications, outweighed any public interest in disclosure of the sites’ data; and;

• the intellectual property rights (‘IPRs’) exemption at reg.12(5)(c) – disclosure would affect the rights of the network operators. The raw national dataset could be used by competitors to discover the design of each mobile network.  The IPRs in question were:
  • the operators’ database right in the Sitefinder database (applying the ruling in CJEU Case C-203/2 British Horseracing Board –v- William Hill, the Commissioner agreed that operators had made the necessary “substantial investment in obtaining, verifying or presenting the contents of the database” (Copyright and Rights in Databases Regulations 1997, reg 13(1)) to create a database right – Ofcom estimated that each operator took up to 50 man hours every 3 months to collate information for Sitefinder as well as 3-5 man-days per month to attend and contribute to Sitefinder policy and development groups);
  • copyright in the operators’ data; and
  • an obligation of confidence (the World Intellectual Property Organisation Convention 1967, Art. 2(viii), includes “rights relating to…works …protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields” – the Commissioner did not find that the appropriate obligation of confidence existed in the data supplied by the operators).

Appeal to Information Commissioner

The case was appealed to the Information Commissioner on 22 April 2005. The Commissioner considered the application by Ofcom of the EIRs, reg.12(5) exemptions, carefully applying his Awareness Guidance No. 20, which details how the Commissioner considers the adverse affect test for EIRs, re.12(5) should operate. Essentially, this is a harm test. The Guidance states: “the adverse affect test provides exceptions only in those cases where an adverse affect would arise. In other words, so far as environmental information is concerned, in order to engage an exception, some harm must be certain rather than merely likely. This is a significant difference.”  As Ofcom did not present the Commissioner with evidence of harm to public safety or national security, or the operators’ IPRs, disclosure was ordered.

In coming to this view, the Commissioner took account of the balance of interests under EIRs’ cases: Recital 16 of the EU Directive on public access to environmental information (Council Directive 2003/4/EC), upon which the EIRs are based, states that exceptions must “be interpreted in a restrictive way”. It was quite possible for Ofcom to disclose the requested information subject to the operators’ database rights and copyright, so that the requester could not use the disclosed database. A public authority cannot prejudge use of disclosed environmental information. The EIRs, as with the FOIA, do not require a requester to state the purpose of the request.  For both copyright and database right, it was ruled that use of the disclosed database by the requester would require a licence from the operators, which by implication they could refuse to grant.

Appeal to Information Tribunal

Ofcom appealed to the Information Tribunal on 10 October 2006, and T-Mobile was permitted by the Tribunal to be joined to the appeal on 29 November 2006.  The case before the Tribunal was a messy one – it was not simply an appeal of the Commissioner’s decision.  However, amongst other rulings, the Information Tribunal in considering the EIRs, reg.12(5)(b) public safety exception, did consider that there was a slightly increased risk that the disclosure of the site information requested, being more accurate than that already in the public domain, may adversely affect public safety. However, the Tribunal did not consider that this increased risk outweighed the public interest in the site information, given its importance as identified in the Stewart Report and for epidemiological investigations.

The Tribunal was also not convinced that the IPR exemption at EIRs, reg.12(5)(c) applied. The Tribunal decided that the exemption can only be applied if there is sufficient adverse effect to trigger the exemption, followed by a consideration of whether there the actual or potential harm in the disclosure is sufficiently great to outweigh the public interest in disclosure. The Tribunal considered that the test to find adverse effect should not be set with a particularly high threshold – the exemption could apply to any case where there was more than a mere technical or minimal infringement of the relevant IPR.  The Tribunal considered the degree of harm that disclosure of the Sitefinder dataset would cause. For example, it considered the potential loss of revenue claimed by the operators from their inability to license their site data and the adverse effect that the disclosure of the Sitefinder information would result in the implied disclosure of each operator’s network design.

In each case, the Tribunal was not convinced that there would be actual or potential harm under each of the headings submitted by Ofcom and T-Mobile, but considered that there was sufficient adverse effect from the combination of the various factors.

The Tribunal also considered a further public interest in withholding the Sitefinder data. The operators’ had warned Ofcom that as their supply of base station data was not a statutory requirement but was made by them voluntarily, they would refuse to supply any further data if the Tribunal ruled in favour of disclosure. There was clearly a public interest in maintaining Sitefinder. The Tribunal did not consider that it could base its decision on any actual or implied threat of future non-cooperation by the operators.

In addition, the Tribunal did not accept Ofcom’s view that the EIRs required it to consider whether the aggregate public interest in maintaining the exemptions outweighed the public interest in favour of disclosure.

Appeal to the Administrative Court

In the Administrative Court the question of how to apply the EIRs exemptions was considered. In essence, the Court reviewed whether a public authority should consider the public interest in disclosure outweighed the public interest in withholding the requested information for each separate exemption that could apply, and only if all exemptions resulted in the public interest in disclosure being outweighed should the information not be released. The contrary argument was that the public authority should consider the aggregate public interest, was dismissed by the Court. In reviewing the IPRs exemptions, the Administrative Court considered that the Tribunal could consider whether the use of the data to be disclosed (i.e. for epidemiological research) was in the public interest, even if that meant a breach of the operators’ rights. This was important as strictly a person requesting information under the EIRs or FOIA does not have to state a purpose (however, I have always advised applicants that the purpose should be stated, for exactly this reason – it colours the public interest test – see the chapter I have co-authored in the Law Society’s Freedom of Information Handbook).

Appeal to the Court of Appeal

The Court of Appeal reviewed the Administrative Court’s view on aggregation of public interest, and determined that the Administrative Court had erred in not following this approach. However, the Court of Appeal agreed that the purpose to which the data disclosed was to be put could be considered in any public interest test.

Supreme Court

The issue for the Supreme Court was therefore the same: how should a public authority apply more than one exemption? Is each exemption to be addressed separately, by considering whether the interest served by it is outweighed by the public interest in disclosure? Or can the interests served by different exemptions be combined and then weighed against the public interest in disclosure? The Supreme Court quickly realised that this involved discerning what was intended by Directive 2003/4/EC, and so made the following reference to the CJEU:

Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure?

Advocate General Opinion

Julianne Kokott has carried out her usual thorough analysis, and has suggested to the CJEU that they answer:

Under Council Directive 2003/4/EC on public access to environmental information, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under Article 4(2), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, the directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure.

If this is followed by the CJEU, then the matter will be referred back relatively quickly to the First-Tier Tribunal (Information Rights), where I would expect the aggregation of exemption interests will be found to outweigh the public interest in disclosure, so that Sitefinder will be saved, and we can all go home.

(PS For legal readers: I did describe the case up to the Information Tribunal, as it then was, in the Freedom of Information Journal. I intend to write-up a more legal analysis of the whole saga for publication, once the CJEU has made its ruling.)

The law moves slowly – 24 years too slowly

Herald of Free Enterprise

Almost 3 years after this photograph was taken in Dover, on the cold evening of 6 March 1987, the Herald of Free Enterprise sailed from Zeebrugge bound for Dover with 459 passengers and 80 crew. Tragically the roll-on-roll-off ferry was designed for the Dover-Calais run, so in order to use Zeebrugge its bow ballast tanks were flooded to lower the car decks to reach the Zeebrugge ramps. The combination of this nose-down attitude and sailing with its bow doors still open resulted in the Herald taking on a mass of water shortly after it cleared the Zeebrugge harbour and in a matter of less than a minute capsizing. Only the fact that it capsized onto a sandbank prevented the ship sinking completely. 193 people died, many not by drowning but by hypothermia, trapped in the ship in water that was only 2-3°C.

The report of the Wreck Commissioner, Mr Justice Steen, makes grim reading. He found:

All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.

This led eventually to the prosecution of P&O European Ferries (Dover) Limited, formerly Townsend Thorensen, and five individuals for corporate manslaughter. Despite the clear failings within the company, the prosecution failed as Mr Justice Turner directed the jury not to convict ([1991] 93 Cr App R 72 (Central Criminal Court)). In order to convict the company of manslaughter under the identification principle that applied at the time, one of the individual defendants who could be “identified” with the company as its “controlling mind” would have had to have been guilty of manslaughter (see Bolton (Engineering) Co. v. Graham [1957] 1 QB 159, per Denning LJ, affirmed by the House of Lords in Tesco Supermarkets Ltd v. Nattrass [1972] AC 153). As this was not the case, the company could not be found guilty.

This was clearly unsatisfactory. Early critics, such as Professor Gary Slapper at the Open University, argued that the courts should adopt the aggregation principle, whereby a company could be found guilty of manslaughter where the combined fault of the directors and officers making up its “controlling mind” can be aggregated, rather than any one individual having the necessary intent for manslaughter.

However, on 15 February 2011 Cotswold Geotechnical (Holdings) Limited were the first company to be successfully prosecuted for corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007. The Act came into force on 6 April 2008. The prosecution followed the death of Alex Wright, a 27-years-old geologist, on 5 September 2008. He was taking soil samples from the bottom of an unsupported 3.5 metre trial pit that collapsed on him, burying and asphyxiating him. Industry practice calls for all trial pits of over 1.2 metres depth to be shored and supported. Mr Justice Field sentenced the company at the Winchester Crown Court to a fine of £385,000, which was more than its annual turnover. He therefore ordered that the company pay the fine at a rate of £38,000 per year. The company was convicted under the following provisions of the Act:

1   The Offence

(1)   An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised-

(a)   causes a person’s death, and

(b)   amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

…

(3)   An organisation is guilty of an offence under this section only if the way in which its activitieis are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

As someone who first considered a career in law as a result of qualifying as a health and safety officer, I am pleased that at last we appear to have a workable corporate manslaughter law. It has only taken 24 years.

Whilst this extreme form of deterrence is not an ideal way to promote health and safety, measures such as this will become more important as the Health and Safety Executive loses over a third of its funding under the October 2010 Comprehensive Spending Review. This will lead to cuts in the number of proactive inspections, and inevitably a fall in prosecutions under the Health & Safety at Work etc. Act 1974. The last full year fatal accident statistics, for 2009/10, show that Great Britain has a good record, with a steady decreasing trend in the fatal accident rate. None of us wants to see this trend reversed.

In memory of Hannah Foster

Usually I give Ofcom consultations a quick speed read, just to be aware what’s happening. Sometimes I even get lucky and a competitor writes up a consultation before I’ve even read it, saving me more time. (Hat tip, as we say on Twitter, to Rob Bratby and his blog post Rules applicable to all UK telecoms operators to change, which I picked up during school half-term.)

So this brings me to the Ofcom’s consultation dated 24 February 2011 discussed by Rob: Changes to General Conditions and Universal Service Conditions. Unless you’re in the telecoms regulatory business, I’d give it a miss.  One of the changes proposed did, however, catch my attention.  Ofcom has considered the amendments required by the Citizens’ Rights Directive 2009/136/EC to the EU framework for telecoms regulation, and in particular the requirement to introduce equivalent access to emergency services for disabled people.  It proposes that this be done in the UK by requiring mobile operators to provide an emergency SMS service.

I have 2 lovely daughters, aged 18 and 16.  Like most dads of teenage girls, I want them to be safe and I worry about them, but I realise that they have social lives to live.  Until recently they lived in Southampton, not too far away from The Hobbitt in Bevois Valley.  This is a popular student pub – I used to go there myself when I was an undergraduate at Southampton.  Sadly, it is also where Hannah Foster, aged 17, went on the night of 14 March 2003, the night she was abducted on her way home, raped and murdered.  On 25 November 2008, Maninder Pal Singh Kohli, then aged 41, was found guilty on the charges of kidnap, rape and murder at Winchester Crown Court and was sentenced to life imprisonment, with a recommended minimum term of 24 years.

During the trial, evidence of Hannah’s last movements derived from her mobile phone records was critical.  Also included in the trial, but not conclusive evidence to convict her killer, were recordings of her 999 call.  She knew she was in danger, so made what is known as a silent emergency call by dialling 999 on her mobile in her pocket.  There is a police protocol to deal with these silent calls, but it is recognised that particularly with the advent of mobile phones, most of these silent emergency calls are accidental.  If the police get no response, following their protocol, they terminate the call.  This happened in Hannah’s case, so tragically her call for help went unheeded.

As a result of this and similar incidents, some emergency call centres (such as in Hampshire) will respond to requests for emergency services sent by text message to 80999.  However, as far as I am aware, no location data is forwarded with the 80999 text message. So I look forward to the introduction of full emergency SMS. Hopefully, as well as providing for the intended access to emergency services for disabled people, this will finally deal with the problem of silent emergency calls so that the next girl in trouble will be saved.

PS

112 is the European Union emergency telephone number, and also the default number on all GSM (2G) mobile phone networks, which convert 112 calls automatically to the relevant national number.  Even though this was introduced in 1991, my anecdotal evidence suggests that this is still not widely recognised in the UK. Surely we ought to teach this as the standard emergency number, particularly for use on mobiles?