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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.

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 freedom of thought in the European Convention on Human Rights (echr) against the background of technological developments in neuroscience and algorithmic processes. Within the echr framework, Article 9 expressly mentions the right to freedom 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 distinction”4 thesis is not supported by the construction of Article 9, the intentions 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 former 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, however, 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 flourish 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.

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We arrange the discussion in this section under two broad headings: neuroscience 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 neural 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. For example, see K. N. Kay et al, ‘Identifying natural images from human brain activity’, Nature 452 (2008) 352–355. Also see, S. Ligthart et al “Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges” (e-pub ahead of print) Neuroethics (2020). Retrieved 27th November 2020 https://link.springer.com/ article/10.1007%2Fs12152-020-09438-4. 10 J. D. Haynes, “Brain Reading: decoding mental states from brain activity in humans”, in: J. Illes and B.J. Sahakian (eds.), Oxford Handbook of Neuroethics (Oxford: Oxford, University Press, 2011). 11 R. Kanai et al, “Political Orientations Are Correlated with Brain Structure in Young Adults”, Current Biology 21(8) (2011) 677–680. 12 A. L. Benabid et al, “An exoskeleton controlled by an epidural wireless brain–machine interface in a tetraplegic patient: a proof-of-concept demonstration”, The Lancet 18(12) (2019) 1112–1122.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 116 o’callaghan and shiner determine whether a person is lying or telling the truth.13 Beyond thinking basic instructions (like thinking “walk” to prompt an exoskeleton to move), brain reading techniques have also been able to decode detailed visual pre- cepts, ideas, memories, emotions14 and, crucially, intentions.15,16 Not only are explicit thoughts potentially readable but so too are unconscious mental states, intentions and decisions.17 Scientists can identify suicidal risk in people based on machine-learning detection of the brain’s response to hearing certain words related to life and death.18 Furthermore, electrical activity in the brain can be altered through different methods of stimulation (electrical, magnetic and ultrasound are some methods) for the purpose of treating neurological and mental illnesses19 or increasing mental focus and intelligence.20 Even more radical are experiments which seek to change behaviours or modify memories by implanting new memories into the minds of non-human

13 F. A. Kozel et al, “Detecting Deception Using Functional Magnetic Resonance Imaging”, Biological Psychiatry 58(8) (2005) 605–613; P. R. Wolpe, K. R. Foster and D. D. Langleben, “Emerging neurotechnologies for lie-detection: promises and perils”, The American Journal of Bioethics 5 (2005) 39–49; M. Monaro, L. Gamberini, and G. Sartori, “The detection of faked identity using unexpected questions and mouse dynamics”, PLoS ONE 12(5) (2017). Retrieved 7 December 2020 https://journals.plos.org/plosone/article/file?id=10.1371/ journal.pone.0177851&type=printable. 14 Haynes supra note 10. 15 Defined as conscious mental states that bear some relation to subsequent action. See M. E. Bratman, Intention, Plans, and Practical Reason (Cambridge, MA: Harvard University Press, 1987); A.R. Mele, Springs of Action (Oxford: Oxford University Press, 1992); E. Pacherie and P. Haggard, “What are Intentions?”, in: L. Nadel and W. Sinnott-Armstrong (eds.), Conscious Will and Responsibility: A Tribute to Benjamin Libet (Oxford: Oxford University Press, 2010) pp. 70–84. 16 P. W. Burgess, G. Gonen-Yaacovi, E. Volle, “Functional neuroimaging studies of prospective memory: what have we learnt so far?”, Neuropsychologia 49 (2011) 2246–57; G. Cona et al, “Neural bases of prospective memory: A meta-analysis and the ‘Attention to Delayed Intention’ (AtoDI) model”, Neuroscience & Biobehavioral Reviews 52 (2015) 21–37. 17 J. D. Haynes and G. Rees, “Decoding mental states from brain activity in humans”, Nature Reviews Neuroscience 7 (2006) 523–34; K. A. Norman et al, “Beyond mind- reading: multi-voxel pattern analysis of fMRI data”, Trends in Cognitive Sciences 10(9) (2006) 424–30; C. S. Soon et al, “Unconscious determinants of free decisions in the human brain”, Nature Neuroscience 11(5) (2008) 543–5455; C. S. Soon et al, “Predicting freechoices for abstract intentions”, Proceedings of the National Academy of Sciences of the United States of America 110 (2013), 5733–5734. 18 M. A. Just et al, “Machine learning of neural representations of suicide and emotion concepts identifies suicidal youth”, Nature Human Behaviour 1 (2017) 911–919. 19 Non-invasive treatments include neurofeedback, transcranial magnetic stimulation, and transcranial electrical stimulation. 20 Transcranial direct current stimulation headsets are commercially available.

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 117 animals.21 It is not hard to imagine these techniques, using optogenetics, being utilised for neuro-enhancement.22 So, not only does it appear increasingly possible to understand what an individual is thinking, it may also be possible to alter the content of the mind. Consider, in this context, recent scientific progress in neural prosthetics. Scientists are developing neuroprosthetic devices to replace missing or dam- aged neurological functions so that sufferers of brain damage can restore speech communication.23 Such medical feats are already being appropriated for commercial enterprise. Facebook, along with a team of scientists and engi- neers, is developing a completely non-invasive wearable brain-computer interface device which will enable people to communicate through thoughts alone. Instead of needing implanted electrodes and fMRI to read and decode brain activity, a brain-computer interface will translate thoughts for “hands-free communication without saying a word” and at the speed of your own internal voice.24 This is a long-term project still in development by way of research into real-time decoding of speech25 and research into decoding speech from neural signals.26 Currently, the proposal is that such a device will be worn like a set of headphones but there are advancements in micro brain implants for reading or controlling neural activity which could enable the insertion of a microchip into the brain to allow humans to merge with artificial intelligence. The com- pany Neuralink is developing a device that can be implanted into the brain which will allow information from the brain to be fed back into smartphones

21 R. L Redondo et al, ‘Bidirectional Switch of the Valence Associated with a Hippocampal Contextual Memory Engram’, Nature 513(7518) (2014) 426–430. 22 T. Kim et al, ‘Injectable, Cellular-Scale Optoelectronics with Applications for Wireless Optogenetics’ Science 340(6129) (2013) 211–216. 23 For a review of this research see U. Chaudhary, N. Birbaumer and A. R Murguialday “Brain– computer interfaces for communication and rehabilitation”, Nature Reviews Neurology 12(9) (2016) 513–525 and S. Martin et al “Decoding Inner Speech Using Electrocorticography: Progress and Challenges Toward a Speech Prosthesis” Frontiers in Neuroscience 12(422) (2018) Retrieved 7 December 2020 https://www.frontiersin.org/articles/10.3389/ fnins.2018.00422/full. 24 Facebook, Imagining a new interface: Hands-free communication without saying a word. Retrieved 27 November 2020. https://tech.fb.com/imagining-a-new-interface- hands-free-communication-without-saying-a-word/. 25 D. A. Moses et al, “Real-time decoding of question-and-answer speech dialogue using human cortical activity”, Nature Communications 10(1) (2019). Retrieved 7 December 2020 https://www.nature.com/articles/s41467-019-10994-4. 26 J. G. Makin et al, “Machine translation of cortical activity to text with an encoder–decoder framework”, Nature Neuroscience 23(4) (2020) 575–582.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 118 o’callaghan and shiner or computers. If successful, this would mean that thoughts and even emotions could be used to control these external devices.27

2.2 Algorithmic Processes Largescale data collection is an inevitable consequence of online activity – indeed, it has almost become a cliché to say that “data is the product”, as information about individual users is collected and sold to third-party adver- tisers by digital platforms.28 This data can be analysed by machine learning tools making it possible to infer detailed and potentially intimate information about individuals. This data can then be used for micro-targeting and optimis- ing processes to govern online user experiences which differ according to the valuation of them based on their data. The extraction of insights reveals the things that are on our mind, whether that is through our search engine history, our engagement with particular news stories or the interactions we have with other users on social media platforms. What is more, our choices can be predicted29 and our emotions,30 opinions,31 and behaviour32 can be influenced by these means. From here benign choice architecture can become coercive; consider, for example, the phenom- enon of “hypernudging” which is a label for algorithmic decision-guidance techniques that channel user attention and decision-making in directions preferred by the digital “choice architect”.33 Moreover, the sheer amount of information available online can mean that, depending on the ranking of information, some knowledge is not accessible at all; think of YouTube’s

27 E. Musk, “An integrated brain-machine interface platform with thousands of channels”, bioRxiv 2 August 2019. Retrieved 27 November 2020. https://www.biorxiv.org/ content/10.1101/703801v4. 28 See generally S. Zubuff, The Age of Surveillance Capitalism (London: Profile Books, 2019). 29 Ibid. 30 C. Marechal et al. “Survey on ai-Based Multimodal Methods for Emotion Detection”, in: J. Kołodziej and H. González-Vélez (eds.), High-Performance Modelling and Simulation for Big Data Applications, Lecture Notes in Computer Science (Cham: Springer, 2019). 31 S. Taylor, M. Boniface and B. Pickering (eds.) “Opinion forming in the digital age: Fake news, echo chambers and populism – Key themes, concerns & recommendations for European research and innovation”. 2018. Retrieved 9 June 2020 https://www.ngi.eu /wp-content/uploads/sites/48/2018/10/Opinion-Forming-in-the-Digital-Age-Public- Recommendations-v1.0.pdf. 32 An extreme example is self-harming behaviour: F. Arendt, S. Scherr, D. Romer, “Effects of exposure to self-harm on social media: Evidence from a two-wave panel study among young adults”, New Media and Society 21(11–12) (2010). Retrieved 11 December 2020 https:// journals.sagepub.com/doi/10.1177/1461444819850106. 33 K. Yeung, “‘Hypernudge’: Big Data as a mode of regulation by design”, Information, Communication & Society 20(1) (2017) 118–136.

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 119 search and recommender algorithms, which have morphed into potential misinformation engines.34 Not only does this become a barrier to accessing factual information but it also feeds misinformation and disinformation presented as credible information.35 The form of the hypernudge could be personally tailored according to psychological disposition or psychometrics gleamed from the analysis of individual data. It can also be incredibly subtle whilst profoundly impactful. For example, an experiment showed that biased search rankings can shift the voting preferences of undecided voters by 20% or more.36 As the Declaration by Council of Europe’s Committee of Ministers on the manipulative capabilities of algorithmic processes observes, “(f)ine grained, sub-conscious and personalised levels of algorithmic persuasion may have significant effects on the cognitive autonomy of individuals and their right to form opinions and take independent decisions”.37 If this is possible then the exercise of individual autonomy is undermined on a daily basis on a global scale. In addition to the hypernudging, which modulates our choices and decisions, there is an element of surveillance through the largescale data collection. “Chilling effect” theory arose from assumptions that state (and non-state) actions can deter people from exercising their legal freedoms or engagement in legitimate activities.38 Internet users may refrain from engaging in certain legal online activities because they fear some sort of legal reprisal or feel a social pressure to conform in order to avoid being labelled a deviant.39 Even if someone is unaware of being surveilled but is aware of the possibility of being surveilled, the panopticon effect can arise whereby behaviour is inhibited in

34 M. Faddoul, G. Chaslot and H. Farid, ‘A Longitudinal Analysis of YouTube’s Promotion of Conspiracy Videos’. 2020. Retrieved 11 December 2020 https://arxiv.org/abs/2003.03318. 35 P. Lewis, “Fiction is outperforming reality’: how YouTube’s algorithm distorts truth”, The Guardian (2 Feb 2018). Retrieved 27 November 2020. https://www.theguardian.com/ technology/2018/feb/02/how-youtubes-algorithm-distorts-truth. 36 R. Epstein and R. E. Robertson, “The search engine manipulation effect (seme) and its possible impact on the outcomes of elections”, Proceedings of the National Academy of Sciences 112(33) (2015) 4512–4521. 37 Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, 13 February 2019, 9. Retrieved 8 December 2020 https://search.coe.int/cm/pages/ result_details.aspx?ObjectId=090000168092dd4b. 38 F. Schauer, “Fear, Risk, and the First Amendment: Unraveling the ‘Chilling Effect’”, Boston University Law Review 58 (1978) 685–732. 39 D. Solove, “A Taxonomy of Privacy”, University of Pennsylvania Law Review 154(3) (2006) 477–560; J. W. Penney “Chilling Effects: Online Surveillance and Wikipedia Use”, Berkeley Technology Law Journal 31(1) (2016), 117–182.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 120 o’callaghan and shiner fear of being watched at any particular moment.40 Here, then, the freedom to think online is curtailed, albeit by the self. The full exercise of autonomy is stifled, and thoughts are not even explored, let alone expressed. All of these advances clearly raise urgent questions not just about privacy but also the protection of our thoughts and ability to think. Neuroethics is being developed to keep pace with scientific and technological advances and seeking to establish basic principles in the use of neurotechnology and machine learning as a therapy and as a commercial tool.41 A group of concerned leading scientists urged that “as neurotechnologies develop and corporations, govern- ments and others start striving to endow people with new capabilities, individual identity (our bodily and mental integrity), and agency (our ability to choose our actions) must be protected as basic human rights.”42 Whereas there are anxious calls to insert “neurorights” into international treaties,43 develop a series of new rights,44 or new criminal offences for violating another person’s mental integrity,45 in this special issue, we argue that, as a first step, we ought to consider the use of the right to freedom of thought as a tool in this context. It is against this background that we now move on to consider how the right to freedom of thought finds expression in the echr.

3 Freedom of Thought in the echr Framework

An examination of Articles 9 and 10 echr and the associated jurisprudence would seem like the natural starting point for any scholars embarking on a

40 On panopticism and subsequent surveillance-related theories, see M. Galič, T. Timan and B. J. Koops, “Bentham, Deleuze and Beyond: An Overview of Surveillance Theories from the Panopticon to Participation”, Philosophy & Technology 30 (2017) 9–37. In the Digital Rights Ireland case (cjeu, 8 April 2014, C-293/12 and C-594/12), the Court of Justice of the European Union held that the Data Retention Directive (Directive 2006/24/ec) was invalid because it violated Articles 7 and 8 of the Charter of Fundamental Rights. The cjeu at [37] highlighted a point made by the Advocate General that the way in which data was being retained under the Directive was “likely to generate in the minds of the persons concerned the feeling that their private lives are the subject of constant surveillance.” 41 For example see: Lavazza, supra note 8. 42 R. Yuste et al, “Four ethical priorities for neurotechnologies and ai”, Nature 551 (2017) 159–163. 43 Ibid. 44 M. Ienca and R. Andorno, “Towards new human rights in the age of neuroscience and neurotechnology”, Life Sciences, Society and Policy 13(5) (2017). Retrieved 7 December 2020 https://doi.org/10.1186/s40504-017-0050-1; P. Sommaggio et al, “Cognitive liberty. A first step towards a human neuro-rights declaration”, BioLaw Journal 3 (2017) 27–45. 45 J. C. Bublitz and R. Merkel, “Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination”, Criminal Law and Philosophy 8 (2014) 51–77.

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 121 legal analysis of freedom of thought in the echr. After all, Article 9 is entitled “Freedom of Thought, Conscience and Religion” and Article 10 is clearly concerned with the freedom to manifest our thoughts in the form of expression. While these provisions are clearly of central concern, a closer analysis reveals that freedom of thought features in the echr in other important ways. Firstly, freedom of thought is what we might call a foundational value in European human rights law or an integral part of its general spirit. The notion of a general spirit has particular legal significance within the echr framework. In line with the basic principles of the international law of treaties,46 the ECtHR must engage in a teleological interpretation of the Convention so that its general spirit is respected.47 In doing so, the Court must ensure that (1) individual human rights are given “practical and effective” protection and (2) the “ideals and values of a democratic society” are maintained and promoted.48 In respect of the former, seeking to protect individual human rights, it should be acknowledged that freedom of thought has long been regarded as being at the foundation of a range of other rights. The drafters of the Universal Declaration of Human Rights (udhr) of 1948 (Article 18 of which provided the model for Article 9(1) echr) were of the view that “the right to freedom of thought was a sacred and inviolable right [and the] basis and the origin of all other rights”.49 Indeed, this would seem to be a point of international agreement.50 In his US Supreme Court majority opinion in Palko v Connecticut, Cardozo J famously described freedom of thought, and speech, as “the matrix, the indispensable

46 Vienna Convention on the Law of Treaties 1969 (adopted 23 May 1969, entered into force 27 January 1980), 1155 unts 1155, 331, Article 31(1). See further D. J. Harris et al, Harris, O’Boyle & Warbick on the Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2014) pp. 7–8. 47 Soering v United Kingdom [1989] echr 14038/88 at [87]. 48 Ibid.; Harris supra note 46, p. 8. 49 unecosoc, Commission on Human Rights, Third Session, Summary Record of the Sixtieth Meeting (23 June 1948) UN Doc E/cn.4/sr.60, p. 10. Indeed, as Swaine argues, ‘it is difficult to conceive of any rights or liberties whose meaning and enjoyment do not involve thinking, or which do not depend otherwise on complex mental activity in some critical way.’ See L. Swaine, “Freedom of Thought as a Basic Liberty”, Political Theory 46(3) (2018) 405–425, 416. Boire argues that ‘[t]he right to control one’s own consciousness is the quintessence of freedom. If freedom is to mean anything, it must mean that each person has an inviolable right to think for him or herself.’ See R. G. Boire ‘On Cognitive Liberty, Part I’, Journal of Cognitive Liberties 1 (2000) 7, p 8 quoted and cited by C. Bublitz, “My Mind is Mine! Cognitive Liberty as a Legal Concept”, in: E. Hildt and A. Francke (eds.), Cognitive Enhancement: An Interdisciplinary Perspective (Dordrecht: Springer, 2013). 50 It is worth noting that for Rawls, freedom of thought is one of the ‘basic liberties.’ See J. Rawls, Political Liberalism (New York: Columbia University Press, 2005). As Swaine points out, freedom of thought is ‘first on [Rawls’] list’. See Swaine, ibid p 408.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 122 o’callaghan and shiner condition, of nearly every other form of freedom.”51 This foundational status of freedom of thought explains why, as we shall later see, the right to freedom of thought as far as it relates to the forum internum is considered an absolute right under Article 9 echr. As for the second purpose of the echr, maintaining and promoting the ideals and values of a democratic society, the ECtHR has consistently emphasised that a democratic society is not possible without “pluralism, tolerance and broadmindedness”.52 It is worth reminding ourselves that “[t]he primary aim of those who drafted the Convention in 1950 was to create a type of collective pact against totalitarianism.”53 As history has taught us, in a truly pluralist society, scientific progress and authentic artistic creativity would not be possible without the guarantee of freedom of thought. Taking the two purposes of the echr together, protecting individual rights and maintaining and promoting the ideals and values of a democratic society, it becomes obvious that freedom of thought ought to be at the very foundation of the European Court’s inter- pretive deliberations when it is seeking to ensure that the general spirit of the echr is respected. The second reason why we should look beyond the traditional Article 9 and 10 case constellations is that full enjoyment of the right to freedom of thought requires that a range of other civil and political rights are effectively safeguarded.54 The pre-Socratic philosopher Empedocles’ theory of the four elements influenced Western science for many centuries and has had an even more enduring cultural influence.55 The theory was that everything in existence had four roots or elements: earth, wind, air and fire, albeit the precise make-up of each substance in the world differed from the next. We propose that it is instructive to think of freedom of thought as having roots in this way and these roots consist of four interrelated echr provisions. Depending on the

51 302 U.S. 319, 327 (1937). 52 Handyside v United Kingdom [1976] echr 5493/72 at [132]. 53 E. Bates, The Evolution of the European Convention on Human Rights (Oxford: Oxford University Press, 2010) preface. See also pp. 70 ff. 54 We are not the first to recognise this interdependency. McGoldrick writes: ‘The freedoms of thought, expression, association, and assembly, often described as fundamental freedoms are closely related civil and political rights. The guarantee of each is necessary or the enjoyment of the other and indeed for the exercise of many human rights.’ See D. McGoldrick, “Thought, Expression, Association, and Assembly”, in: D. Moeckli, S. Shah, S. Sivakumaran and D. Harris (eds.), International Human Rights Law (Oxford: Oxford University Press, 2017) p. 208. 55 See K. Scarlett Kingsley, ‘Empedocles’ (2019) Stanford Encyclopaedia of Philosophy. Retrieved 27th November 2020. https://plato.stanford.edu/entries/empedocles/.

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 123 precise factual context, one or more of these rights may be in the picture when freedom of thought is at stake. They are:

Article 8 (Right to respect for private and family life) Article 9 (Freedom of thought, conscience and religion) Article 10 (Freedom of expression) Article 11 (Freedom of assembly and association)

Imagine a world where a person’s inner life was in principle afforded absolute legal protection but that same person was under constant surveillance, was prevented from acting in the way her conscience dictated, was not allowed to practice a religion, was not permitted to freely express her opinions and was prevented from associating with like-minded people.56 We might say that her absolute right to freedom of thought has very little practical significance since she is unable to freely manifest her thoughts. But at a more fundamental level we would have to question the extent to which she has freedom of thought in the first place. The “sheer tropical luxuriance of the inner life”, as Nagel puts it, is informed by our experience of and interaction with others in the world.57 A person deprived of such experiences may have mental activities that we can label “thoughts” but the term “freedom of thought”, as we use it in liberal democracies, evokes an image of an autonomous individual whose dignity is respected by the community. This freedom cannot be fully enjoyed when one is deprived of food for thought or interaction with others for the purpose of freely developing one’s thoughts. So understood, the ‘thought’ within freedom of thought includes “deliberation, imagination, belief, reflection, reasoning, cogitation, remembering, wishing, sensing, questioning, and desiring”,58 all of which require access to information, the freedom to interact with others and learn from these experiences if they are to be are realisable in their fullest senses. At the same time, and in a similar vein, we need others to respect our privacy, “the condition in which other people are deprived of access to either some information about [us] or some experience of [us].”59 Withdrawing from the

56 This thought experiment is inspired by Brunton’s and Nissenbaum’s reflections on how a “fairly ordinary person” experiences surveillance on a daily basis. See F. Brunton and H. Nissenbaum, Obfuscation (Cambridge MA: mit Press, 2015) pp. 54–55. 57 T. Nagel, “Concealment and Exposure”, Philosophy & Public Affairs 27(1) (1998) 3–30, 4. 58 Swaine supra note 49, p 411. 59 J. H. Reiman, “Driving to the Panopticon: A Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future”, Santa Clara Computer and High Technology Law Journal 11 (1995) 27–44, 30.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 124 o’callaghan and shiner world to some degree so that we can enjoy “intellectual privacy”60 while at the same time drawing on one’s experiences of the world, one can, as Roessler articulately puts it, “ask oneself authentically who one is and how one would like to live.”61 In doing so, the individual is able to “conceive, develop and pursue goals” or an authentic “life plan”.62 What all of this means is that freedom of thought in its fullest sense – the freedom that is enjoyed by the autonomous individual whose dignity is respected by the community – requires guarantees of both some measure of uncurbed social interaction and some measure of “breathing space” or “relief” from that social interaction.63 For these reasons, we need legal protection of the freedom to manifest our thoughts and interact with others in our community as well as guarantees of our privacy if we are to have freedom of thought as it is understood in liberal democracies. Articles 8–11 echr are fundamental in more ways than one since not only do they safeguard the range of interests listed in each provision but, when taken together, they also support freedom of thought and autonomy more generally. The essential nature of these provisions can also be inferred from the fact that the ECtHR has interpreted these provisions as not only imposing negative duties but also positive obligations on the part of the Contracting States.64 Understood against this background, our analysis of freedom of thought in the echr must entail an examination of how each of Articles 8–11 pertain to freedom of thought. However, before we engage in this analysis, we must first say something about the qualified nature of these rights. As we shall later see, the right to freedom of unmanifested thought under Article 9 is considered

60 Richards defines intellectual privacy as “protection from surveillance or interference when we are engaged in the processes of generating ideas – thinking, reading, and speaking with confidents before our ideas are ready for public consumption.” See N. Richards, Intellectual Privacy (Oxford: Oxford University Press, 2015) p. 5. 61 B. Roessler The Value of Privacy (Cambridge: Policy Press, 2005) p. 73. 62 Ibid. 63 On “breathing space” in the sense that it is used in this paper, see generally J. Cohen, Configuring the Networked Self (New Haven: Yale University Press, 2012). On the idea of “relief from social stressors” see C. R. Long, M. Seburn, J.R. Averill & T.A. More, “Solitude Experiences: Varieties, Settings, and Individual Differences”, Personality and Social Psychology Bulletin (2003) 29(5) 578, p 582. See also Roessler supra note 61, p. 79, on the importance for autonomy of the “possibilities of withdrawing from the gaze of other people” and having “dimensions in one’s life that are free from the objections or control of other people”. 64 See, for example, X and Y v the Netherlands [1985] echr 8978/80 (Article 8); Eweida & Others v United Kingdom [2013] echr 36516/10 (Article 9); Özgür Gündem v Turkey [2000] echr 23144/93 (Article 10); Sørensen & Rasmussen v Denmark [2005] echr 52562/99 and 52620/99 (Article 11).

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 125 an absolute right but the other rights protected by Articles 8–11 are qualified rights. So far, we have argued that it is essential to guarantee these rights if we are to have freedom of thought in its fullest sense. But the fact that these rights are qualified is not in itself detrimental to free thought. Liberal democracies acknowledge that the rights holder, though she is autonomous, is also a member of the community. John Stuart Mill, the nineteenth century English political philosopher, famously argued for “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theolog- ical”.65 However, as one might have expected of the proponent of the “harm principle”, he added that “[n]o one pretends that actions should be as free as opinion.”66 In other words, while thought is a product of the inviolable privacy of the individual mind, the manifestation of such thought occurs within the community. For historical and cultural reasons, different communities have come to different conclusions about what manifestations are appropriate, as expressed, for example, in their defamation or hate speech laws.67 It is important, then, that Contracting States have some “room to manoeuvre” or a margin of appreciation in determining how and to what extent rights should be restricted under each subsection 2 of Articles 8–11.68 However, given the fundamental value of freedom of thought, it should be emphasised that when this freedom is at stake, the State’s margin of appreciation is likely to narrow and in some circumstances dissolve completely.69 As such, Article 9(2) provides fewer bases for limitation compared to Articles 8(2), 10(2) and 11(2). We now move on to consider the Article 8–11 framework. As Article 9 expressly mentions freedom of thought, we will begin with that provision.

65 J. S. Mill, On Liberty and Other Writings, (S. Collini (ed.)) (Cambridge: Cambridge University Press, 1989) p. 15. See also Swaine supra note 49. 66 Ibid, Mill p. 56. 67 See, for instance, O. Bakircioglu, “The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases”, German Law Journal 8(7) (2007) 711–733; T. McGonagle, Freedom of Expression and Defamation (Council of Europe, 2016); G. Brüggemeier, A. Colombi Ciacchi and P. O’Callaghan (eds.), Personality Rights in European Tort Law (Cambridge: Cambridge University Press, 2010); J. Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press). 68 On the margin of appreciation, see A. Legg, The Margin of Appreciation in International Human Rights Law (Oxford: Oxford University Press, 2012); D. McGoldrick, “A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee”, International and Comparative Law Quarterly 65(1) (2016) 21–60. 69 In respect of Article 8, for example, the Court has held that the State’s margin of appreciation is narrower ‘where a particularly important facet of an individual’s existence or identity [is] at stake’. See Hämäläinen v Finland [2014] echr 37359/09 at [42]. It hardly needs to be pointed out that freedom of thought is ‘a particularly important facet of an individual’s existence’.

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3.1 Article 9 echr For the purposes of this analysis, it is necessary to set out the text of Article 9 echr in full:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

In what follows we analyse the text of Article 9 and the associated jurisprudence. In doing so, we seek to address the following four questions: (a) Is there a separate right to freedom of thought under Article 9 echr? (b) Does Article 9 echr provide an absolute right to freedom of thought? (c) Can we and is it necessary to delineate the forum internum and the forum externum for the purposes of legal analysis? (d) Does the right to freedom of thought under Article 9 give rise to a positive obligation on Contracting States?

3.1.1 A Separate Right to Freedom of Thought under Article 9? Of the three elements of the right mentioned in the first clause of Article 9(1), most ECtHR case law revolves around the latter two: freedom of conscience (especially conscientious objection from military service) and freedom of religion.70 Some cases, however, concern belief, which, in the jurisprudence of the ECtHR, has a particular meaning not limited to religious belief.71 According to Campbell and Cosans v United Kingdom, beliefs, within the meaning of Article 9, are views that “attain a certain level of cogency, seriousness, cohesion and importance”.72 Furthermore, under Article 9, belief is not the same thing as opinion, even deeply held opinions, but “relates to the holding of spiritual

70 For conscientious objection cases see, for example, Bayatyan v Armenia [2009] echr 23459/03; Adyan and Others v Armenia [2017] echr 75604/11; Dyagilev v Russia [2020] echr 49972/16. 71 Pretty v. the United Kingdom [2002] echr 2346/02; Gough v. the United Kingdom [2015] echr 49327/11. 72 Campbell and Cosans v United Kingdom [1982] echr 7511/76 and 7743/76 at [36].

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 127 or philosophical convictions which have an identifiable formal content.”73 Within the echr framework, opinions, when manifested, fall under the remit of Article 10. What this means is that Article 9 tends to be associated with freedom of religion, conscientious objection and freedom of belief as defined by the Campbell and Cosans test. Lawyers tend not to think of Article 9 as providing a separate right to freedom of thought in the more general sense we described in the last section. While it might be possible to justify a narrower conception of Article 9’s remit on the basis of a noscitur a sociis-type argument, it is worth mention- ing that freedom of thought is the first element of the right that is mentioned in the opening clause of Article 9(1). Moreover, the second clause of Article 9(1) sets out a non-exhaustive list of the various freedoms guaranteed by the right. As such, freedom of thought is a specific right within Article 9 which can be actioned independently of the right to religion and conscience. In other words, it is “separate and autonomous”.74 Within this context, it is also worth examining the documentation related to the drafting of the udhr and the draft International Covenants on Human Rights – which later split into two separate treaties: the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights – as well as the echr. Approaching the task of establishing a collective guarantee of essential freedoms and fundamental rights for all persons residing in Member States territories following the Second World War, the Council of Europe agreed to make use of the defi- nitions set out in the udhr.75 As such, Article 9 echr is almost identical to Article 18 udhr, which in a similar form appears in Article 18 iccpr.76 These three provisions each encompass four elements: thought, conscience, religion and belief. Separately, Article 10 echr and Article 19 udhr and iccpr establish a right to freedom of opinion and expression, which includes the freedom to seek, receive and impart information and ideas.77 These documents do not

73 McFeeley et al v United Kingdom [1980] echr 8317/78 at [29]. See also Campbell and Cosans, ibid. 74 L. G. Loucaides, “The Right to Freedom of Thought as Protected by the European Convention on Human Rights”, Cyprus Human Rights Law Review 1 (2012) 79–87, 80. 75 See Council of Europe, Parliamentary Assembly, Doc 77 5 September 1949. 76 Note, that initially Article 16 of the draft International Covenant on Human Rights contained the relevant right, but draft Article 16 then formed the basis for Article 18 of the iccpr. 77 The combination of these separate rights is configured differently in national and regional treaties and laws with the right to freedom of thought being protected in combination with religion, conscience and belief or in conjunction with freedom of expression and the right to information, as in Article 13 American Convention on Human Rights.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 128 o’callaghan and shiner define the terms “thought”, “conscience” and “religion” although it was said that “thought covers the mere act of thinking and exercising reason” whereas conscience is a reference to morality.78 Together these terms cover “all possible attitudes of the individual toward the world, toward society, and toward that which determines his fate and the destiny of the world, be it a divinity, some superior being or just reason and rationalism, or chance”.79 The udhr drafting documentation reveals that the apparent necessity of including “freedom of thought” in Article 18 was contested. Several state rep- resentatives conceived Article 18 as protecting religious belief only and as such explicit reference only to religion and belief was sufficient.80 But, in what appears to be an effort to broaden out Article 18 beyond religious thought, the French representative, Mr Cassin, spoke of the significance of freedom of thought by referring to the European conception which had “metaphysical significance”.81 Mr Cassin explained that “freedom of inner thought”82 required explicit mention alongside the freedom of religion, and separate to freedom of expression, because “the opposite of inner freedom of thought was the out- ward obligation to profess a belief which was not held. Freedom of thought thus required to be formally protected in view of the fact that it was not possible to attach it indirectly”.83 Here, then, we see the development of relationship between (yet difference in) the law’s treatment of the forum internum – an inner world of thought and opinion – and the forum externum – a “public matter, or a matter of human relationship” which “should be subject to legal as well as moral restraint”.84 During the drafting of Article 9 echr, it was stated by the French Rapporteur, Pierre-Henri Teitgen, that the purpose of the right to freedom of thought as well as the right to freely express convictions, and freedom of conscience, religion and opinion is to protect individuals not only from breaches by Member States, such as confessions, but also from the “abominable methods of police enquiry or judicial process which rob the suspected or accused person of control of

78 A. F. Jacobsen, “The Right to Freedom of Thought, Conscience and Religion”, in A. F. Jacobsen (ed.), Human Rights Monitoring (Leiden: Brill, 2008) p. 284. 79 K. J. Partch, “Freedom of Conscience and Expression, and Political Freedoms”, in: L. Henkin (ed.) The International Bill of Rights. The Covenant on Civil and Political Rights (New York, Columbia University Press, 1981) p. 213. 80 unecosoc supra note 49, p. 12. 81 Ibid p. 13 82 Ibid p. 10, emphasis in original. 83 Ibid emphasis in original. 84 unga, Draft International Covenants on Human Rights: Annotation (1 July 1955) UN Doc A/2929, p 145.

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 129 his intellectual faculties and of his conscience”.85 In this statement, particularly the reference to the individual’s “control of his intellectual faculties”,86 we see that Article 9 echr was not conceived as protecting thoughts solely of a religious or philosophical nature but that there was a broader conception that maps on to our description of freedom of thought above. Of course, the right to freedom of religion has attracted the most attention in scholarship87 and makes up the bulk of the ECtHR’s Article 9 cases88 but there is nothing to suggest in the text of Article 9 or the travaux préparatoires that Article 9 is primarily concerned with religion or convictions of the conscience. The analysis above illustrates that, on the contrary, freedom of thought was considered to offer general protection of the forum internum in addition to religious belief and matters of the conscience. On the basis of our textual analysis of Article 9 as well as this overview of the drafting history, we argue that Article 9 provides a separate right to freedom of thought that can be mobilised outside of the freedom of religious belief, freedom of philosophical belief and conscientious objections contexts. But even if the reader remains unconvinced by this argument, it ought to be stressed that the Strasbourg Court interprets the echr in a “dynamic” or “evolutive” manner “in the light of present-day conditions.”89 In the light of the socio-technological developments described in section 2 and what they portend, it may soon be of vital importance that individuals have recourse to a right to freedom of thought that can be relied upon in practice.

3.1.2 An Absolute Right to Freedom of Thought under Article 9? The forum internum or our inner life “is considered beyond the reach of the State.”90 In Kosteski v The Former Yugoslav Republic of Macedonia, the ECtHR remarked that “the notion of the State sitting in judgment on the state of a

85 Report presented by Mr P. H. Teitgen, 5 September 1949, Doc 77. 86 In this context, see Stenlund and Slotte on the forum internum and right to certain internal capabilities in M. Stenlund and P. Slotte “Forum Internum Revisited: Considering the Absolute Core of Freedom of Belief and Opinion in Terms of Negative Liberty, Authenticity, and Capability”, Human Rights Review 19(4) (2018) 425–446 87 This is quite evident from an ‘Article 9 echr’ search in a law library catalogue. 88 At the time of writing, of the 2811 Article 9(1) echr cases, 923 related to freedom of religion, as opposed to 115 relating to freedom of thought, and 589 related to the manifestation of religion or belief. 89 Tyrer v United Kingdom [1978] echr 5856/72 at [31]. 90 Bublitz supra note 1, p 6. Bublitz also explains the various practical, philosophical and legal reasons why this is so. See also Bublitz supra note 49, p. 243, where, drawing on Kant, Bublitz explains that “mental duties are ultra vires, outside of the legitimate mandate of the law.”

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 130 o’callaghan and shiner citizen’s inner and personal beliefs is abhorrent.”91 The absolute nature of the right to freedom of unmanifested thought is confirmed in the text of Article 9 since Article 9(2) refers to manifestation of religion or beliefs only. What this necessarily means is that unmanifested thoughts are absolutely protected.92 In Kokkinakis v Greece,93 the first case to find a violation of Article 9, the ECtHR emphasised this point:

“The fundamental nature of the rights guaranteed in Article 9 para. 1 (art. 9-1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10–2, art, 11–2) which cover all the rights mentioned in the first paragraphs of those Articles (art. 8-1, art. 10–1, art. 11-1), that of Article 9 (art. 9-1) refers only to ‘freedom to manifest one’s religion or belief’.”94

This reflects the discussions during the drafting of the udhr, during which the absolute character of the freedom of inner thought was stressed. The discussion of the wording of Article 18 udhr portrayed the characterisation of the right as being “sacred”, “inviolable” and “the basis and the origin of all other rights.”95 Further, no restrictions “of a legal character” could be imposed upon “man’s inner thought or moral consciousness, or his attitude towards the uni- verse or its creator.”96 As such, it was agreed that only external manifestations of religion and belief could be subject to legitimate limitation and freedom of thought and conscience could never be subject to State interference.97 General Comment No. 22 of the Human Rights Committee also makes it clear that the freedom of unmanifested thought under Article 18 is protected “uncondition- ally” and “does not permit any limitations whatsoever”.98

91 [2006] echr 55170/00 at [39]. 92 The Council of Europe’s Guide on Article 9 of the Convention states that Article 9 contains “two strands, one on the right to hold a belief and the other on the right to manifest that belief: the right to deeply hold any belief (whether religious or not) and to change one’s religion or beliefs. This right is absolute and unconditional; the State cannot interfere with it, for instance by dictating what a person believes or taking coercive steps to make him change his beliefs.” See Guide on Article 9 of the Convention (updated 31st August 2020), p 11. Retrieved 27th November 2020. https://www.echr.coe.int/Documents/Guide_Art_9_ENG. pdf. 93 (1993) Series A no 260-A. 94 Ibid at [33]. 95 unecosoc, (n 79) p. 12. 96 unga, (n 83) p. 136 97 ibid pp. 27, 136. 98 ohchr, General Comment No 22: Article 18 (Freedom of Thought, Conscience or Religion), (20 July 1993) UN Doc ccpr/C/21/Rev.1/Add.4, 3.

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This notion of the freedom of an inner state of mind has found expression in ECtHR jurisprudence on Article 9 through references to the forum internum or, in French, the for intérieur or, more frequently, the term “individual conscience”.99 In C v UK, the Commission did not find a violation of Article 9 where a Quaker was required by law to pay taxes, a significant proportion of which was diverted to defence and military spending, in contradiction to his pacifist beliefs. The Court stated:

“Article 9 primarily protects the sphere of personal beliefs and religious creeds, i.e. the area which is sometimes called the forum internum. In addition, it protects acts which are intimately linked to these attitudes, such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form. However, in protecting this personal sphere, Article 9 of the Convention does not always guarantee the right to behave in the public sphere in a way which is dictated by such a belief…”100

The ECtHR has repeatedly acknowledged, albeit seemingly exclusively in the context of freedom of religious and philosophical belief, that Article 9 echr protects the internal realm by prohibiting compulsion to reveal one’s thoughts or beliefs,101 prohibiting coercion to alter thoughts or beliefs102 and prohibiting interventions into the inner realm to discover thoughts or beliefs.103 For example, no one can be compelled to reveal his or her beliefs through the requirement to carry an identity card containing religious affiliation or swear a religious oath thereby revealing one’s private beliefs,104 which extends from the negative right that one can choose not to adhere to a religion and not to practice it.105 To our knowledge, the right to freedom of unmanifested thought, outside of the freedom of religious or philosophical belief contexts, has not yet been

99 Roberts supra note 4, 78–81. 100 C. v. The United Kingdom (1984) 6 ehrr 587 (Commission Decision) (App no 10358/83, 15 December 1983) at [147]. See also X (Ross) v The United Kingdom (1984) 6 ehrr 558 (Commission Decision) (App no 10295/82, 14 October 1983). 101 Alexandridis v Greece [2008] echr 19516/06 at [38]; Grzelak v Poland [2010] echr 7710/02 at [87]. 102 Ivanova v Bulgaria [2007] echr 52435/00 at [79]; Mockutė v Lithuania [2018] echr 66490/09 at [119]. 103 Alexandridis v Greece [2008] echr 19516/06; Sinan Işik v Turkey [2010] echr 21924/05. 104 Buscarini and Others v San Marino [1999] echr 24645/94; Alexandridis v Greece [2008] echr 19516/06; Sinan Işik v Turkey [2010] echr 21924/05. 105 Kokkinakis v Greece [1993] echr 14307/88.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 132 o’callaghan and shiner argued before the ECtHR. Perhaps the best explanation is that, to date, this right has not been perceived as having been violated. Frank Cranmer, one of the contributors to this special issue, quotes the reasoning of Chief Justice Bryan of the Court of Common Pleas in 1477: “It is common learning that the thought of man is not triable, for the Devil knows not the thought of man”.106 Indeed, until recently at least, it would seem that this was a generally-held view. However, a close examination of ECtHR jurisprudence reveals cases that could have been framed as infringements of freedom of unmanifested thought but were instead decided on other grounds. Consider forced confessions, one of the potential examples of infringement of freedom of thought envisaged by Mr Teitgen. When such cases come before the Strasbourg Court, they are considered in the context of Article 3 echr (prohibition of inhuman and degrad- ing treatment) without consideration of Article 9.107 Likewise, cases involving a State’s censorship of political opinions are considered under Article 10 and/ or Article 11 echr.108 While the applicants in censorship cases are generally complaining about restrictions on the manifestation of thought, censorship also impacts on the forum internum since it restricts access to information. As Loucaides puts it: “every person who is ill-informed cannot think freely because, being deprived of all the necessary information, his intellectual process of thinking is barred from developing freely [to] its optimum extent.”109 Even if a more general right to freedom of unmanifested thought could have been argued before the Court in the past, we argue that the socio-technological developments outlined in section 2 mean that this right is likely to be utilised in the future. In this context, the existing jurisprudence on the forum internum offers a picture of the right’s protective remit and provides a platform on which the right can be further developed. In reviewing the relevant jurisprudence, Vermeulen argues that the:

“absolute freedom to entertain any thought, moral conviction or religious view…implies that one cannot be subjected to treatment intend- ed to change the process of thinking (‘brain-washing’), that any form of compulsion to express thoughts, to change an opinion, or to divulge a religious conviction is prohibited, and that no sanction may be imposed

106 F. Cranmer ‘The Right to Freedom of Thought in the United Kingdom’ in this special issue edition. 107 See, for example, Shishkin v Russia [2011] echr 18280/04. 108 See below for a discussion of Articles 10 and 11 echr. 109 Loucaides, supra note 74, p 87.

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either on the holding of a view or on the change of a religion or conviction: it protects against indoctrination by the State.”110

Drawing on Vermuelen’s work, Alegre has suggested three aspects of the absolute right to freedom of unmanifested thought: “the right not to reveal one’s thoughts or opinions; the right not to have one’s thoughts or opinions manipu- lated; and the right not to be penalised for one’s thoughts.”111

3.1.3 Delineating the Forum Internum and the Forum Externum The difference between the forum internum and the forum externum can be classified as being one of jurisdiction because the law responds to each differently.112 Yet, some argue that this distinction may appear clearer in the abstract than it does in practice.113 Roberts has argued that locating any such distinction is the wrong approach to understanding Article 9 which, rather than being divided, is on “conceptual continuum ranging from the forum internum to the forum externum” with varying degrees of protection depending on the balance between any indication of a violation (particularly of the forum internum) and countervailing factors suggesting there has been no violation.114 As Petkoff remarks, these spheres may be better conceived as being interconnected and sometimes being exercised at the same time.115 Consider in this context Loucaides’ argument that there are some manifestations of thought that are deserving of absolute protection under Article 9.116 In respect of expression of thought, which ordinarily falls under Article 10, Loucaides argues that any limitation that suppresses the thought or the freedom of thought – as opposed to limiting the form and effect of expression – should be impermissible.117 We might flesh out Loucaides’ idea by drawing on an example. Where, for instance, the State forces someone to publicly apol- ogise for an opinion expressed, it is not only the effect of the expression that has been suppressed; rather the State is also suppressing freedom of thought. For even if the apology has no bearing on the internally held opinion, the State

110 Vermeulen supra note 7, p. 752. 111 Alegre supra note 1, p. 225. 112 P. Petkoff, “Forum internum and forum externum in canon law and public international law with particular reference to the jurisprudence of the European Court of Human Rights”, Religion & Human Rights: An International Journal 7(3) (2012) 183–214. 113 H. Bielefeldt, N. Ghanea and M. Wiener supra note 4. 114 Roberts supra note 4, p. 76. 115 Petkoff supra note 112. 116 Loucaides supra n.74, pp. 82–83. 117 Ibid p. 84.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 134 o’callaghan and shiner is effectively mandating a ‘correct’ way to think.118 In less clear-cut cases, however, difficult judgements might have to be made about whether the speech in question is deserving of absolute protection under Article 9 or is potentially subject to limitations under Article 10 (2) or 9(2). While imperfect and open to some degree of interpretation, the distinction between the forum internum and forum externum – that is, a distinction between unmanifested thoughts (which attract absolute protection) and any manifestation of these thoughts (which attracts qualified protection only) – would appear to be a more coherent position.119 This approach might allay the concerns of those who argue that the right to freedom of thought should not mean the right to hold any thought, for that would conflict with medical interventions that seek to treat destructive thoughts such as harmful delusional or psychotic thoughts.120 Clearly, any manifestation of thought that has the potential to harm the subject or others should not be afforded absolute protection as the ECtHR indicated in Mockutė v Lithuania when considering that the “psy- cho-correction”121 of the religious beliefs of an individual receiving psychiatric treatment might be justified when there is a “clear and imminent risk that such beliefs will manifest in actions dangerous to the patient or others”.122 In Mockutė, the ECtHR found a violation of Article 9 but only after considering whether the interference with the applicant’s Article 9 right was justified, indicating that the Court understood the applicant’s Article 9 right as being qualified. Such an approach does not necessarily amount to the finding that the forum internum is not absolutely protected. Of course, the internal state is creating the “clear and imminent risk” of harm and, as such, treatment seeks to prevent the harmful manifestation of such thoughts by targeting those thoughts which will cause (further) harm or suffering for the patient and others. Indication of a “clear and imminent risk” is assessed not through the reading of a person’s cognitive state but through the way in which the internal state is revealed whether through speech or behaviour. In other words, treatment arises from and is directed towards manifestations of mental ill-health alone. This is a different reading of how Article 9 might respond to involuntary psychiatric treatment compared to Roberts who interprets Mockutė as disclosing the ECtHR’s

118 See, in this context, Kazakov v Russia [2008] 1758/02. 119 In any case, as Loucaides explains, where there are convincing arguments that freedom of thought is at stake in the context of any manifestation of thought, this provides a justification for the Court to strictly construe any lawful limitations. See Loucaides supra note 74, p. 83. 120 Stenlund and Slotte supra note 86. 121 Mockutė v Lithuania [2018] echr 66490/09 at [37] and [123]. 122 Ibid at [129].

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 135 view of absolute rights as “not always to be protected absolutely in practice, in all situations” when countervailing considerations might be weighted more heavily against protecting the forum internum.123 Nonetheless, given that in Mockutė there was no evidence of any harmful manifestation of the applicant’s thoughts,124 the Court should have treated this as a case where the absolute freedom of unmanifested thought was at stake rather than consider whether the interference was justified. As Mockutė may demonstrate, and as many commentators have observed, a view of Article 9 as containing clear distinctions between the internal and external elements is not supported in any coherent way in the ECtHR’s jurisprudence.125 Roberts argues that the standard textual division between the internal and external elements of the right is inaccurate and the structure of Article 9 does not reveal a clear distinction at all. Instead both the forum internum and the forum externum are protected under the broad right to freedom of thought, conscience and religion and are both related aspects of this right.126 Again, our argument is that only when thoughts are unmanifested should they be deserving of absolute protection. This, we believe, is an uncontrover- sial yet untested statement. As such, and for the purpose of this article, there is no need to elaborate any further on the distinctions between the internal and external realms. All we seek to establish here is that there is a fundamental and unrestricted right to freedom of unmanifested thought. What exactly this entails requires clarification from the Court but, as we have argued, it is not dependent upon the content or substance of the thoughts but instead the form.

3.1.4 A Positive Obligation to Protect Freedom of Thought under Article 9? To this point we have argued that Article 9 echr provides a separate and absolute right to the freedom of unmanifested thoughts. One remaining issue needs to be considered. Given that many of the socio-technological developments outlined in section 2 stem from the commercial activities of private entities,

123 Roberts supra note 4, p 110. Emphasis in original. 124 Mockutė v Lithuania [2018] echr 66490/09 at [129]. 125 A. Mawhinney, “Coercion, oaths and conscience: conceptual confusion in the right to freedom of religion or belief”, in: F. Cranmer, M. Hill, C. Kenny and R. Sandberg (eds.), The Confluence of Law and Religion Interdisciplinary: Reflections on the Work of Norman Doe (Cambridge: Cambridge University Press, 2016). 126 Roberts supra note 4, p. 47.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 136 o’callaghan and shiner the ECtHR would need to interpret the right as giving rise to a positive obligation, if it is to have a meaningful impact. There have been relatively few cases to date where the Court has found the State in breach of a positive duty under Article 9.127 However, in Eweida & Others v United Kingdom,128 where some of the acts complained of were attrib- utable to private companies, the Court cited, in this context, some of its pre- vious decisions where a positive duty arose under Article 10.129 On a mutatis mutandis basis, the Court proceeded to hold that it “must consider the issues [in the present case] in terms of the positive obligation on the State authorities to secure the rights under Article 9 to those within their jurisdiction”.130 Article 9 also attracts positive obligations upon states “to establish an effective and accessible procedure for determining whether an applicant is entitled to conscientious objector status”131 and to “ensur[e] peaceful co-existence of all religions and those not belonging to a religious group by ensuring mutual tolerance”.132 Following Eweida, then, it would appear that Article 9 places a positive duty on States to secure the right to freedom of thought. Understood in this way, Article 9 echr has the potential to be an extremely powerful tool in the context of the Fourth Industrial Revolution. However, there are other ways that the echr supports freedom of thought and we now move on to consider the remaining elements of the Article 8–11 complex of rights.

3.2 Article 8 echr Article 8(1) echr provides that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”133 Article 8 is most

127 See, for example, Members of the Gldani Congregation of Jehovah’s Witnesses and Others v Georgia [2007] echr 71156/01. 128 [2013] echr 36516/10. 129 Palomo Sánchez and Others v Spain [2011] echr 28955/06, 28957/06, 28959/06 and 28964/06. See also Otto-Preminger-Institut v Austria [1994] echr 13470/87. 130 [2013] echr 36516/10 at [84]. 131 Dyagilev v. Russia [2020] echr 49972/16 at [63]. 132 [2019] echr 38450/12 at [44]. 133 Article 8(2) sets out the qualifications: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” For a comprehensive overview of Article 8 jurisprudence see the Council of Europe’s Guide on Article 8 of the European Convention on Human Rights (31st August 2020). Retrieved on 27th November 2020. https://www.echr.coe.int/documents/guide_art_8_eng.pdf.

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 137 commonly associated with the right of privacy and many Article 8 applications tend to be what we might call “classic privacy cases” i.e. situations where the State has unlawfully intruded upon the private and/or family life of the applicant.134 From the perspective of freedom of thought, at first glance, one might think that the sole point of Article 8 is to protect that “withdrawing from the world” that we have argued is necessary for freedom of thought in its fullest sense. This is undeniably an important function of Article 8. Technological developments afford States sophisticated ways of engaging in surveillance of their cit- izens.135 Moreover, the increasingly seamless integration of technology with our lives means that we now face distinct privacy threats stemming from cor- porate entities.136 As Hoofnagle et al put it, “a small number of companies have a window into most of our movements online.”137 The persistent monitoring of our activities online, the collection, aggregating and sharing of this data and the ensuing profiling, when taken together, presents a context in which it is more difficult to withdraw from the world and enjoy “intellectual privacy”.138 It may be that the average individual does not feel that general State-related surveillance (ostensibly undertaken for security purposes) and dataveillance (for commercial purposes) undermines her interests.139 Alternatively, on a sort of cost-benefit analysis, the individual may choose to sacrifice some privacy for gains in convenience.140 But even if our starting point is that such surveillance is not always harmful, the very sense of being constantly monitored, of

134 Indeed, the Strasbourg Court has emphasised that “the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities.” See Kroon and Others v the Netherlands (1994) 18535/91 at [31]. 135 Big Brother Watch v UK [2018] echr 58170/13, 62322/14 and 24960/15; Big Brother Watch and Others v UK [2021] ECHR 58170/13, 62322/14 and 24960/15. 136 On ‘seamlessness’, see Cohen, Configuring the Networked Self (n 63). 137 C.J. Hoofnagle et al, “Behavioral Advertising: The Offer You Cannot Refuse”, Harvard Law & Policy Review 6 (2012) 273–296, 279. 138 Richards supra note 60. 139 Dataveillance refers to the way information technologies make it possible to monitor and collect information. See R. Clarke, “Information Technology and Dataveillance”, Communications of the ACM 31(5) (1998) 498–512. As Nissenbaum explains “innumerable interactions and transactions can be monitored and tracked through the exchange, extraction and capture of information.” See H. Nissenbaum, Privacy in Context (Stanford: Stanford University Press, 2010) p 23. 140 On the so-called ‘participatory panopticon’ see Rössler supra note 61, p. 128 citing R. Whitaker, The End of Privacy: How Total Surveillance is Becoming a Reality (New York 1999) pp. 139ff. See Galič, Timan and Koops, supra note 40.

European Journal of Comparative Law and GovernanceDownloaded from8 (2021) Brill.com09/28/2021 112-145 11:20:18AM via free access 138 o’callaghan and shiner the Orwellian “always the eyes watching you”,141 leads to a feeling of being sur- rounded by “invisible barbed wire”142 and undermines our ability to withdraw from the world. To the extent that Article 8 can be mobilised to protect against such privacy intrusions,143 it is of vital support to freedom of thought. But Article 8 supports freedom of thought in another substantial way. Consider how broadly the ECtHR has interpreted the meaning of “private life” under Article 8. The Court has stated that “private life” is incapable of “exhaustive definition”144 and “may embrace multiple aspects of a person’s physical and social identity.”145 According to the Court:

“the guarantee afforded by Article 8 of the Convention is primarily in- tended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings … There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.”146

Article 8 protects our “physical and psychological integrity”147 but the Court emphasises that its “primary” purpose is to support the individual’s personal development. So understood, Article 8 echr does not just protect our ability to withdraw from the world to degrees we see fit but it also safeguards our social interactions or our “private social life”,148 the guarantee of which, we have argued is also essential if freedom of thought is to be realised in its fullest sense. In fact, the Court has made reference to two rights in this context; “the right to personal development” and the “right to establish and develop relationships with other human beings in the outside world”.149 These two rights

141 The phrase ‘always the eyes watching you’ is extracted from George Orwell, 1984 (New York: Harcourt Publishing, 1949) p 26. 142 E. Morozov, ‘The Real Privacy Problem’ MIT Technology Review (October 22, 2013). Retrieved on 27th November 2020. https://www.technologyreview.com/2013/10/22/112778/ the-real-privacy-problem/. 143 Cf B. van der Sloot “Is the Human Rights Framework Still Fit for the Big Data Era? A Discussion of the ECtHR’s Case Law on Privacy Violations Arising from Surveillance Activities”, in: S. Gutwirth, R. Leenes and P. De Hert, Data Protection on the Move (Dordrecht: Springer, 2016). 144 Niemietz v Germany [1992] echr 13710/88 at [29]. 145 S and Marper v United Kingdom [2008] echr 30562/04 and 30566/04 at [66]. 146 von Hannover v Germany (No 1) (2004) echr 59320/00 at [50]. 147 X and Y v the Netherlands [1985] echr 8978/80; Söderman v Sweden (2013) echr 5786/08 at [80]. 148 Bărbulescu v Romania [2017] echr 61496/08 at [70]. 149 Pretty v United Kingdom [2002] 2346/02 at [61]; Oleksander Volkov v Ukraine [2013] echr 21722/11 at [165].

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 139 are intimately connected but it is especially important that individuals are able to enjoy a “private social life”, in which thoughts can be shared and explored with family and friends before being made public. Writing many years before the advent of the digital age, Westin emphasised the importance for the development of the personality of “sheltered experimentation and testing of ideas”. He wrote:

“[The] development of individuality is particularly important in democratic societies, since qualities of independent thought, diversity of views, and non-conformity are considered desirable traits for individuals. Such independence requires time for sheltered experimentation and testing of ideas, for preparation and practice in thought and conduct, without fear of ridicule or penalty, and for the opportunity to alter opinions before making them public.”150

Experimenting with and testing ideas is of crucial formative importance for the individual and, as Westin recognises, society also benefits from the result- ing independent thought, diversity of views and non-conformist thinking.151 Article 8 is essential for free thought not only because it safeguards our ability to withdraw from the world but also because it provides a right to a private social life in which we can share and test our thoughts. We now move on to consider Article 10 echr.

3.3 Article 10 echr Article 10(1) states that “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”152

150 A. F. Westin, Privacy and Freedom (New York: Athenum,1967) p. 34. 151 Cohen writes that “the condition of no-privacy threatens not only to chill the expression of eccentric individuality, but also, gradually, to dampen the force of our aspirations to it.” See J. E. Cohen, “Examined Lives: Informational Privacy and the Subject as Object”, Stanford Law Review 52(5) (2000) 1373–1438, p. 1426. See also Richards supra note 60. 152 Article 10(1) goes on to provide: “This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ Article 10(2) sets out the qualifications: ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Viewing this provision through the prism of freedom of thought, the first thing that strikes the reader is that the guarantee under Article 10 includes the “freedom to hold opinions”. Article 19 iccpr provides for a “right to hold opinions without interference” and it is clear that this is an absolute right since the reference to limitations in Article 19(3) applies only to the right to freedom of expression. While early agreements on the wording of Article 10 echr simply referred to Article 19 iccpr,153 the final echr provision departs from Article 19 iccpr and does not explicitly provide for an absolute freedom to hold opinions. Indeed, a literal interpretation of Article 10 would seem to confirm that the freedom to hold opinions is a qualified right.154 This difference seems all the more surprising in the light of the deliberations of the drafters of Article 19 draft ICCPR, which was consulted during the drafting of Article 10 echr and included as an appendix to the summary of the travaux préparatoires.155 The ICCPR drafters were of the view that the freedom to hold an opinion and freedom of expression:

“were not of the same character, the former was purely a private matter, belonging as it did to the realm of the mind, while the latter was a public matter, or a matter of human relationship, which should be subject to legal as well as moral restraint. Although it was recognised that a person was invariably conditioned or influenced by the external world, it was generally agreed that no law could regulate his opinion and no power could dictate what opinion he should or should not entertain.”156

For these reasons, the drafters of Article 19 ensured that the freedom to hold opinions and freedom of expression remained distinct rights, the former con- stituting an absolute right while the latter was qualified. Understood against this background, the apparent qualification of the freedom to hold opinions under Article 10(1) echr is surprising. However, this anomaly may not be of any great significance if one understands Article 9 as affording absolute protection to all unmanifested thoughts, including opinions.

153 coe, European Commission of Human Rights, Preparatory Work on Article 10 of the European Convention on Human Rights (17 August 1956) Doc dh (56) 15, pp.2–3. 154 This is because Article 10(2) provides that restrictions may be placed on ‘these freedoms’ (referring to the freedoms listed in Article 10(1), which includes the freedom to hold opinions). On this point, see T. Mendel, Freedom of Expression: A Guide to the Interpretation of Article 10 ECHR, p. 7. Retrieved on 27th November 2020. https://rm.coe.int/16806f5bb3. 155 coe supra note 153. 156 coe supra note 153, para 120.

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While Article 8 safeguards our “private social life” and therefore protects the exchange of information in personal relationships, Article 10(1) provides more extensive protection of information exchange since it guarantees both the freedom to receive and to impart information and ideas.157 Such guarantees are essential if we are to have freedom of thought in its fullest sense. When the State guarantees freedom of expression for the individual, the community is formally acknowledging the personhood of that individual, a personhood that deserves respect or attention.158 Moreover, as Greenawalt explains, “[b]y affording people an opportunity to hear and digest competing positions and to explore options in conversations with others, freedom of discussion is thought to promote independent judgment and considerate decision, what might be characterized as autonomy.”159 The combined effect is that “people will be less subject in their decisions to the dictates of others, and will be encouraged to exercise this independence in a considerate manner that reflects their fullest selves.”160 It is important to mention at this point that the Strasbourg Court has consistently stressed that, subject to the restrictions in Article 10(2), which are to be “construed strictly”,161 Article 10(1) is:

“applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”162

157 See Autronic ag v Switzerland [1990] echr 12726/87; Mustafa and Tarzibachi v Sweden [2008] echr 23883/06. So, for example, where a State blocks access to platforms such as Google or YouTube, there is clearly an infringement of this right. See Ahmet Yıldırım v. Turkey [2012] echr 3111/10; Cengiz and Others v Turkey [2015] echr 48226/10 and 14027/11. In Cengiz, the Strasbourg Court at [49] stressed that “the Internet has now become one of the principal means by which individuals exercise their right to freedom to receive and impart information and ideas, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.” 158 As Taylor explains, recognition is a ‘vital human need.’ See C. Taylor, “The Politics of Recognition”, in: A. Gutmann (ed.) Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press) p. 26. 159 K. Greenawalt, “Free Speech Justifications”, Columbia Law Review (1989) 89 (1) 119–155, 143. 160 Ibid p. 144. 161 Hachette Filipacchi Associes v France [2007] echr 71111/01 at [40]. 162 Handyside supra note 51, at [49], which has been reaffirmed in numerous cases including Fressoz and Roire v France [gc], echr 29183/95 at [45]; Stoll v Switzerland [gc], echr 69698/01 at [101]; Pentikäinen v Finland [2015] echr 11882/10 at [87]; and, Bédat. Switzerland [2016] echr 56925/08 at [48].

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If we are to have freedom of thought in its fullest sense, the individual must be able to draw on the widest possible range of information sources. As Loucaides argues, “it cannot be emphasised enough, that a prerequisite to the exercise of freedom of thought, is the effective exercise of the right to freedom of information”.163 At the same time, the individual must be permitted to manifest her own thoughts in a public setting, subject only to strictly construed legal limitations.164 When the free exchange of information and ideas is constrained in some way (e.g. through State censorship), not only does this have a detrimental impact on the individual’s personal development, it also has serious impli- cations for democracy. As the Court has repeatedly emphasised, “freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment.”165

3.4 Article 11 echr Article 11(1) provides that “[e]veryone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”166 A detailed examination of these rights lies outside the scope of this article rather our aim here is to briefly highlight important intersections between Article 11 and the exercise of freedom of thought in its fullest sense.167

163 Loucaides supra note 74, p. 87. 164 In the echr framework, these limitations can be found in Article 10(2) and Article 17 (Abuse of Rights). 165 Lingens v Austria [1986] echr 9815/82 at [41]; Handyside supra note 52, at [49]. 166 Article 11(2) sets out the qualifications: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” For a comprehensive overview of Article 11 jurisprudence see the Guide on Article 11 of the European Convention on Human Rights (31 August 2020). Retrieved on 27 November 2020. https://www.echr.coe.int/Documents/Guide_Art_11_ ENG.pdf. 167 For literature in this area, see, for example, D. Golubovic, “Freedom of Association in the Case Law of the European Court of Human Rights”, The International Journal of Human Rights 17 (7–8) (2013) 758–771. For an interesting article critiquing, amongst other things, the different approaches of the ECtHR to Articles 10 and 11, see S. Sottiaux and S. Rummens, “Concentric Democracy: Resolving the Incoherence in the European Court of Human Rights’ Case Law on Freedom of Expression and Freedom of Association”, International Journal of Constitutional Law 10(1) (2012) 106–126.

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Though Article 11 has an “autonomous role”, it will often need to be “considered in the light of” Articles 9 and 10.168 There is an important connection between these two provisions and Article 11. In fact, we might say that the protection of thought is one of the purposes or objectives of Article 11.169 In one case where the right to freedom of assembly was engaged, the Court described Article 10 as a “lex generalis” and Article 11 as a corresponding “lex specialis”.170 In respect of freedom of association, the Strasbourg Court has emphasised that:

“[t]he protection of personal opinion afforded by Articles 9 and 10… in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association”171

As mentioned earlier in our discussion of Article 8, the freedom to interact with others is necessary for freedom of thought in its fullest sense. This is not only of benefit to the individual but is also of benefit to society. The Court has recognised that pluralism, one of those “hallmarks” of a democratic society, would be “impossible” if individuals were not allowed to freely associate with others in order to pursue political projects.172 But the opposite is also true. Respect for freedom of thought means respect for an individual’s autonomy and right to choose the groups to which she belongs. So understood, Article 11 also guarantees the right to dis-associate or withdraw from associations.173 Any unlawful compulsion to join or stay a member of an association “strikes at the very substance of [Article 11]”.174

3.5 Freedom of Thought in the echr Framework: Summing Up The analysis in this section reveals that it is necessary to look beyond the confines of Article 9 echr if we are to properly understand how freedom of thought features in the echr framework. The complex of rights within Article

168 Socialist Party and Others v Turkey [1998] echr 20/1997/804/1007 at [41]. 169 See Vörður Ólafsson v Iceland [2010] echr 20161/06 at [46]. 170 Ezelin v France [1991] echr 11800/85 at [35]. 171 Young, James and Webster v United Kingdom [1981] echr 7601/76 and 7806/77 at [57]. The same can be said of the freedom of assembly. See Freedom and Democracy Party (özdep) v Turkey [1999] 23885/94 at [37]: “[t]he protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11.” 172 Zhechev v Bulgaria [2007] 57045/00 at [36]. 173 Sigurður A Sigurjónsson v Iceland [1993] echr 16130/90 at [35]. 174 Sørensen & Rasmussen v Denmark [2005] echr 52562/99 and 52620/99 at [54].

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8–11 support freedom of thought in profoundly important ways. However, it is Article 9 itself that has the potential to be the most powerful tool in the face of the socio-technological challenges of the Fourth Industrial Revolution. This is because, as we have argued, Article 9 echr should be understood as providing a separate and absolute right to the freedom of unmanifested thought, which imposes positive obligations on Contracting States to safeguard the integrity of the forum internum. As such, it is increasingly incumbent upon states to intervene in important areas of technological and scientific development to establish appropriate forms of protection. This must include a review of how the national and regional laws facilitate compliance with the right to freedom of thought, which may include considering the strict regulation, or even ban- ning, of certain products and technologies.

4 Conclusion

Dwight Newman, one of the contributors to this special issue, argues that freedom of thought is one of the “forgotten freedoms.”175 If the socio-technological developments we have described in this paper continue apace, then we believe it is only a matter of time before liberal democracies start to remember the value they once placed on this freedom, however much they may have taken it for granted. Against this background, charged with maintaining and promoting the ideals and values of a democratic society, we predict that the ECtHR will make greater use of the right to freedom of thought within Article 9. But the ECtHR’s primary task is to ensure that individual human rights are given practical and effective protection. In the pages above we referenced Empedocles’ theory of the four elements and argued that each of Articles 8–11 constitute a distinct root for freedom of thought within the echr framework. Revisiting the writings of Plato and Aristotle, medieval scholars and alche- mists conjectured that there was a fifth element, which they called the quinta essentia. This was the substance from which “God created all of nature. … It is the material source of the four elements and provides their nucleus”.176 In Pretty v United Kingdom, the ECtHR emphasised that “[t]he very essence of the Convention is respect for human dignity and human freedom.”177 This is

175 D. Newman ‘Freedom of Thought in Canada: The History of a Forgetting and the Potential of a Remembering’ in this special issue. 176 Michela Pereira, “Heavens on Earth. From the Tabula Smaragdina to the Alchemical Fifth Essence”, Early Science and Medicine 5(2) (2000) 131–144, p. 142. 177 [2002] 2346/02 at [65]; Christine Goodwin v United Kingdom [2002] echr 28957/95 at [90].

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 145 what binds Articles 8–11 together; it is their quintessence and the right to freedom of thought within Article 9 must be understood in this context. Article 9, as Domingo eloquently puts it, “[protects] the inward space in which human beings can escape from any kind of external coercion. [The rights within that provision] watch over the space in which the self has the final say.”178 A renewed attention on the importance of safeguarding freedom of thought in the face of the Fourth Industrial Revolution is essential if we are to continue to have the necessary breathing space to flourish as human beings.

178 R. Domingo, “Restoring Freedom of Conscience”, Journal of Law and Religion 30(2) (2015) 176–193, p. 181.

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