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Downloaded from Brill.Com09/28/2021 11:20:18AM Via Free Access European Convention on Human Rights 113 European Journal of Comparative Law and Governance 8 (2021) 112-145 The Right to Freedom of Thought in the European Convention on Human Rights Patrick O’Callaghan* Lecturer in Law, School of Law, University College Cork, Cork, Ireland [email protected] Bethany Shiner | ORCID: 0000-0002-6852-7816 european convention on human rights Lecturer in Law, School of Law, Middlesex University London; DPhil candidate, Faculty of Law, University of Oxford, Oxford, UK [email protected] o’callaghan and shiner Abstract This paper examines the right to freedom of thought in the European Convention on Human Rights against the background of technological developments in neuroscience and algorithmic processes. Article 9 echr provides an absolute right to freedom of thought when the integrity of our inner life or forum internum is at stake. In all other cases, where thoughts have been manifested in some way in the forum externum, the right to freedom of thought is treated as a qualified right. While Article 9 echr is a core focus of this paper, we argue that freedom of thought is further supported by Articles 8, 10 and 11 echr. This complex of rights carves out breathing space for the individual’s personal development and therefore supports the enjoyment of freedom of thought in its fullest sense. Charged with ‘maintaining and promoting the ideals and values of a democratic society’ as well as ensuring that individual human rights are given ‘practical and effective protection’, this paper predicts that the European Court of Human Rights will make greater use of the right to freedom of thought in the face of the emerging challenges of the Fourth Industrial Revolution. Keywords right to freedom of thought – echr – article 9 echr – technology * Dr O’Callaghan’s contribution to this paper stems from research funded by an Irish Research Council New Horizons Grant. © koninklijke brill nv, leiden, 2021 | doi:10.1163/22134514-bja10016Downloaded from Brill.com09/28/2021 11:20:18AM via free access european convention on human rights 113 1 Introduction In recent years, some pioneering doctrinal and theoretical work has been undertaken on how the right to freedom of thought might be conceptualised and mobilised during the Fourth Industrial Revolution.1 This paper aims to contribute to the emerging research in this field by examining the right to free- dom of thought in the European Convention on Human Rights (echr) against the background of technological developments in neuroscience and algorith- mic processes. Within the echr framework, Article 9 expressly mentions the right to free- dom of thought and, so understood, would seem to be the most promising means to safeguard the right in the face of socio-technological change. Article 9 provides a separate and absolute right to freedom of unmanifested thought. Limitations on freedom of thought are possible only when our thoughts are manifested in some way – through expression or other forms of behaviour. As such, commentary on Article 9 has traditionally drawn a distinction, implied by the wording of Article 9, between the forum internum – “the inner realm of the mind”2 – and the forum externum – “the external realm of action”.3 In recent scholarship, Caroline Roberts has argued that the “‘clear and sharp dis- tinction”4 thesis is not supported by the construction of Article 9, the inten- tions of the drafters as revealed by the travaux préparatoires and Article 9 jurisprudence. Instead, Roberts argues that the forum internum and the forum externum are interconnected so that rather than protection under Article 9 1 See, for example, S. Alegre, “Rethinking Freedom of Thought for the 21st Century”, European Human Rights Law Review 3 (2017) 221- 233; S. Alegre “Regulating around freedom in the ‘forum internum’” (2020) era Forum. October 2020. Retrieved 27th November 2020 https:// link.springer.com/article/10.1007/s12027-020-00633-7; J.C. Bublitz, “Freedom of Thought in the Age of Neuroscience” Archiv für Rechts- und Sozialphilosophie (100)(1) (2014) 1–25; M.J. Blitz, “Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution”, Wisconsin Law Review 4 (2010) 1049–1118; S. McCarthy Jones, “The Autonomous Mind: The Right to Freedom of Thought in the Twenty-First Century”, Frontiers in Artificial Intelligence 2(19) (2019). Retrieved 27 November 2020 https://doi.org/10.3389/frai.2019.00019. On the idea of a “Fourth Industrial Revolution”, see K. Schwab, The Fourth Industrial Revolution (New York: Random House, 2017). 2 C. K. Roberts, “Is There a Right to Be ‘Free from’ Religion or Belief at Strasbourg?”, Ecclesiastical Law Journal 19(1) (2017) 35–41. 3 ibid. 4 H. Bielefeldt, N. Ghanea and M. Wiener, Freedom of Religion or Belief (Oxford: Oxford University Press, 2016) p. 566 as cited in C. K. Roberts ‘Reconceptualising the place of the forum internum and the forum externum in Article 9 of the European Convention on Human Rights’ PhD Thesis, University of Bristol, 24 March 2020. Retrieved 27th November 2020 https://research-information.bris.ac.uk/en/studentTheses/ reconceptualising-the-place-of-the-forum-internum-and-forum-exter. European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 114 o’callaghan and shiner being on the basis of either the forum internum or the forum externum (the for- mer ranked higher than the latter), it is better to understand the jurisprudence in this area “in terms of a series of concentric circles.”5 So understood, the European Court of Human Rights (ECtHR) protects the rights under Article 9 according to a continuum where indicators of the rights being violated are balanced against any countervailing factors indicating that there has not been a violation.6 This new approach to conceptualising Article 9 does not, how- ever, challenge the understanding that there is an absolute right to freedom of unmanifested thought within Article 9. The prevailing view of an absolute right to freedom of thought is that although it is symbolically important, it is of little or no practical significance.7 However, this paper argues that existing and emerging technologies threaten the inviolability of this space and should reor- ient our attention towards the potential use of the right to freedom of thought as a practical tool to defend basic rights and liberties. While Article 9 echr is a central focus in this paper, we also briefly consider how Articles 8, 10 and 11 echr support freedom of thought. Taken together, we argue that these four provisions form a complex of rights that allow freedom of thought to be enjoyed in its fullest sense. 2 Emerging Technologies and the Integrity of the Forum Internum Before setting out our two main arguments – that Article 9 echr provides absolute protection to the forum internum and that Articles 8–11 provide both a protective framework as well as a platform for freedom of thought to flour- ish in its fullest sense – we briefly examine technological developments that threaten the inviolability the forum internum or our “mental integrity”, as defined by Lavazza: “Mental integrity is the individual’s mastery of his mental states and his brain data so that, without his consent, no one can read, spread, or alter such states and data in order to condition the individual in any way.”8 5 Roberts, ibid p. i. 6 Ibid. 7 Note, however, Vermeulen’s view that the “absolute freedom to entertain any thought, moral conviction or religious view is not entirely without practical importance.” See B. Vermeulen, “Freedom of Thought, Conscience and Religion”, in: P. van Dijk, F. van Hoof, A. van Rijn and L. Zwaak (eds.), Theory and Practice of the European Convention on Human Rights (4th edn.) (Antwerp: Intersentia, 2006) p. 752. 8 A. Lavazza, ‘Freedom of Thought and Mental Integrity: The Moral Requirements for any Neural Prosthesis’, Frontiers in Neuroscience 82(12) (2018) 1–10, 4. European Journal of Comparative Law and GovernanceDownloaded from 8 Brill.com09/28/2021(2021) 112-145 11:20:18AM via free access european convention on human rights 115 We arrange the discussion in this section under two broad headings: neurosci- ence and algorithmic processes. 2.1 Neuroscience As our thoughts are a continuous and varied stream of consciousness, with a mix of representations of memories, feelings and our senses (sights, sounds etc), neuroscience is unable to decode the entirety of our mental content. However, developments in neuroscience over the past fifteen years or so have provided an increased ability to monitor and influence mental processes. Brain imaging, through functional magnetic resonance imaging (fMRI) and electroencepha- lography, provides structural and functional information about the brain and its neural activity. These processes of brain scanning are often described as ‘mind-reading’ because they can predict the stimuli to which an individual is exposed, based on the brain’s neural activity.9 As neural activity patterns are a unique and unmistakable brain signal indicating a specific thought, once neu- ral activity patterns are identified it becomes possible to infer what someone is thinking.10 The application of machine learning to decode complex patterns of brain activity has accelerated insights into thinking, and feeling, as a human being. There are significant methodological challenges to developing more accu- rate “mind-reading” technologies and it is not possible to read the arbitrary thoughts of individuals. Yet, despite these limitations, the science is rap- idly developing. It has already been shown that brain scanning can suggest an individual’s political orientation,11 implanted brain sensors can enable a paralysed person to walk by controlling an exoskeleton suit with thoughts,12 and applying statistical pattern recognition techniques to brain activity may 9 Much of the brain reading research initially focused on visual perception.
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