In this issue
International Law Bulletin
CONFLICT OF LAWS IN HONG KONG   
Human Rights Law’s Myths
Online Violence Against Women: An update
Human rights monitoring, Northern West Bank.
Time to Think about Freedom of Thought
International criminal justice and the global migration crisis
Time to Think about Freedom of Thought

By  Susie Alegre,

 

Perhaps because of an assumption that our inner thoughts are beyond the effective scope of state intervention, the right to freedom of thought has received little attention in the courts and little academic analysis in international human rights law.[1]  But as technology and science develop ever clearer pictures of the way our thought processes work and how our thoughts can be accessed, altered, and manipulated it is time to reflect on the practical needs for protecting freedom of thought in the rapidly changing digital reality of the 21st Century. 

Freedom of thought is an essential plank of the international human rights framework. Unlike many other rights such as the right to private life that allow for restriction in certain circumstances, there is an absolute right to think what you like in the “forum internum” or the inner space of your mind.  This inviolable freedom has been described as “the foundation of democratic society”[2] and “the basis and origin of all other rights.”[3]  And it is connected to the corresponding right to freedom of expression and opinion which provides the social backdrop crucial to critical and intellectual thought. The absolute nature of the right reflects its fundamental importance but the lack of development of the right means it is difficult to pin down its exact scope in a rapidly changing world. 

International human rights law makes a distinction between the internal aspect of the right – the right to think or believe what you like in the inner sanctum of your mind – and the manifestation of the right.   It is that internal aspect that is now under threat.  Freedom of thought includes the freedom to keep our thoughts private so that we may not be coerced into revealing them; freedom from indoctrination or influence on our conscious or subconscious mind through manipulation; and a prohibition on penalising a person for their thoughts or opinions.  But despite the apparent strength of protection contained in the right, little has been done to develop the legislative and regulatory frameworks to ensure that enjoyment of the right to freedom of thought is real and effective in a modern context and it has received little attention from lawyers.

State signatories to international human rights conventions are bound to respect the right, but also to protect all those in their jurisdiction from interference with the right.  This means that governments need to refrain from using techniques that interfere with our freedom of thought, but they also need to take concrete steps to protect us from interference from the private sector where much of the technology is being developed and used.  While detailed domestic and regional laws and regulations have developed over the past two decades around privacy and data protection in both the public and private sectors in response to the exponential changes brought in by the internet and other technology, freedom of thought has remained a blind spot in the legal framework around digital developments. 

Technological threats to freedom of thought come from many different sources particularly related to the internet and big data, that engage our inner thoughts on a daily basis across our societies and which may be used by both governments and the private sector to manipulate us as individuals or groups.  The right to freedom of thought in international law has the potential to protect us as individuals living in democratic societies in the internet age but it has been under-utilised.  As Facebook develops its “brain-computer interface” and the use of big data is increasingly a major factor in our elections, we need to start recognising the potential for legal action and policy development to ensure the essence of the right is not lost for future generations.

 

Susie Alegre

1 November 2017

(this article is an extract from a longer opinion piece published in the European Human Rights Law Review EHRLR [2017] Issue 3 pages 221-233 “Rethinking Freedom of Thought for the 21st Century”)

 



[1] Limited examples of academic work on the topic include C. Bublitz and Merkel, “Crimes against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination”, (2014) 8, Crim Law and Philos, 64 and Prof Eben Moglen’s speech at Re-Publica, Berlin in 2012: “Why Freedom of Thought requires Free Media and why Free Media require Free Technology” https://re-publica.com/en/file/republica-2012-eben-moglen-freedom-thought-requires-free-media-0  accessed 12/04/2017

[2] Nolan and K v Russia, (App. No.2512/04), judgment of 12 February 2009. para 61

[3] Rene Cassin, France, as reported in M. Scheinin, “Article 18”, in: A. Eide et al. (eds.) UDHR: A Commentary. (Scandinavian University Press, 1992), p. 266