Inside Your Head: Defending Freedom of Thought

By Susie Alegre, 6th February 2021

A black and white image of lines that look like a brain lit up in different areas

When I first read about behavioural micro-targeting by Cambridge Analytica in January 2017, it struck me that the human rights at stake went beyond privacy and data protection.

To me, the idea that someone could use my data to reach inside my head, understand how I might be thinking or feeling and use that information to press my psychological buttons for political purposes was chilling. It was not my privacy that was at stake, it was my right to freedom of thought. 

But when I started looking for cases and academic analysis on the right to freedom of thought in the digital age, I found almost nothing. So I set out to change that by publishing an article in the European Human Rights Law Review exploring the parameters and application of the right in the era of Big Data.

The more I looked into it, the more it became clear that the problem went way beyond political behavioural micro-targeting: much of what Shoshana Zuboff has called “surveillance capitalism” raises serious questions about freedom of thought. 

…when I started looking for cases and academic analysis on the right to freedom of thought in the digital age, I found almost nothing

A DFF pre-litigation research grant allowed me to build on this work in 2019-20 exploring the potential for using the right to freedom of thought to strengthen concrete strategic litigation on digital rights.

What is the right to freedom of thought and why is it useful?

The right to freedom of thought is protected by Article 18 of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the European Convention on Human Rights (ECHR) and Article 10 of the European Union (EU) Charter on Fundamental Rights and is closely related to the right to freedom of opinion that is protected alongside freedom of expression in those instruments. 

The right has two aspects:

  • the internal aspect – what I think in the privacy of my own head; and
  • the external aspect – how I express or manifest my thoughts and beliefs

There are three main planks to the protection provided by the right to freedom of thought:

  • The right not to reveal our thoughts.
  • The right not to have our thoughts manipulated.
  • The right not to be punished for our thoughts.

All three are potentially relevant in the digital age, where algorithmic processing of Big Data is relied on to profile and understand individual’s thought processes in real time for the purpose of targeting them with tailored advertising and other content or to inform automated decisions that can affect their lives.

…algorithmic processing of Big Data is relied on to profile and understand individual’s thought processes in real time

Most rights, like privacy and freedom of expression, can be limited in human rights law, for example in the interests of health or security.  But the internal aspect of the right to freedom of thought is absolute. This makes it a particularly powerful legal tool because it means that, if something amounts to an interference with the right, there can be no justification that would make it lawful. 

Scoping out what an interference with freedom of thought would look like in the digital space is, therefore, helpful for identifying what can never be justified in human rights law.

How can it be used in strategic litigation?

The right to freedom of thought does not necessarily need to be used as a standalone right in strategic litigation.  As these arguments are novel, it may be better to use it to bolster arguments on protection of personal data or the right to private life, whether in courts or before supervisory authorities charged with enforcing the General Data Protection Regulation (GDPR) or other relevant regulatory bodies.

GDPR and EU Law

The right to freedom of thought in the EU Charter can be used as an interpretative tool for the GDPR or other laws implementing EU legislation.  The Court of Justice of the European Union (CJEU) has made clear that [s]ince the fundamental rights guaranteed by the Charter must […] be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.”

Article 10 of the EU Charter can be used in submissions on the interpretation and application of the GDPR before supervisory authorities or courts where EU law is relevant.  It is particularly relevant to the question of lawfulness. A failure to interpret the GDPR in light of Charter rights could give rise to a request for referral to the CJEU to clarify the scope and application of the right in a way that would have impact across the EU.

As an example of the way these arguments could be developed, I published a legal opinion on the application of the rights to freedom of thought and mental integrity designed to supplement a complaint to the CNIL (the French Data Protection Authority) by Privacy International on data sharing by mental health websites.

ECHR and Constitutional Rights

The right to freedom of thought is also reflected in many domestic constitutional or human rights frameworks and may be used in national human rights or constitutional challenges.

Domestic human rights challenges may ultimately lead to freedom of thought litigation before the European Court of Human Rights

An example of this was the use of the right to “ideological freedom” in the Spanish Constitution to challenge the legality of Spanish data protection law on the collection and use of personal data by political parties. Domestic human rights challenges may ultimately lead to freedom of thought litigation before the European Court of Human Rights to clarify the scope of rights in the ECHR in a way that could have impact across Europe.

What happens next?

The Digital Freedom Fund pre-litigation grant is hopefully just the beginning. Those interested can see a summary report of my research, which provides more information on ways to use freedom of thought in potential strategic litigation and possible fact patterns. And the legal opinion on mental health websites is published and available for anyone who wants to challenge the type of practices revealed in the Privacy International report “Your Mental Health for Sale.”

It has been a really exciting year, reaching out to so many digital rights activists and organisations to advance these arguments and find ways of using them to make digital rights real. I hope this project will serve to inspire new cases and new arguments to strengthen strategic litigation. If you want to find out how these arguments could fit into your work, please do get in touch

Susie Alegre is an international human rights lawyer, author and barrister at Doughty Street Chambers specialising in the right to freedom of thought and technology.

Related links:

(ENG) Freedom of Thought: Findings, Legal Analysis and Next Steps

(ESP) La libertad de pensamiento: Hallazgos, análisis legal y próximos pasos

(ENG) Legal Opinion: The Right to Freedom of Thought and Data Sharing from Mental Health Websites

(ESP) Opinión: Del derecho a la libertad de pensamiento 

 

Protecting Freedom of Thought in the Digital Age

By Susie Alegre, 23rd March 2020

Emoticons and "like" buttons

My work as an independent lawyer focuses on the potential for technology to interfere with our right to freedom of thought, as protected in international law instruments including Article 9 of the ECHR and Article 18 of the ICCPR.

According to these instruments, many rights, like the right to private life and the right to freedom of expression, can be limited in certain circumstances to protect the rights of others or in the interests of public order.

The right to freedom of thought, on the other hand, is absolute under international human rights law. This means that where there has been an interference with our right to freedom of thought, as it relates to the thoughts and feelings we experience in our inner world, such an interference can never be justified.

Despite this strong level of treaty-based protection, however, the right to freedom of thought has rarely been invoked in the courts. Many legal scholars and commentators have assumed that this is because, in fact, no person or government could ever get inside our minds.

Many legal scholars and commentators have assumed that this is because, in fact, no person or government could ever get inside our minds

But when I first read about the Cambridge Analytica scandal and the use of behavioural micro-targeting to produce individual psychological profiling of voters so that they can be targeted with tailored adverts that press their unique psychological buttons, it seemed clear to me that the idea that no one could ever interfere with our minds was outdated.

There are three main planks to the right to freedom of thought:

  • The right not to reveal our thoughts.
  • The right not to have our thoughts manipulated.
  • The right not to be punished for our thoughts.

All three are potentially relevant in the digital age, where algorithmic processing of Big Data is relied on to profile and understand individual’s thought processes in real time for the purpose of targeting them with tailored advertising and other content.

Profiling seeks to infer how we think and feel in real time based on large swathes of data, including our online activity. Research on Facebook claimed that the social media platform could know you better than your family from interpreting your “likes”. In this way, interpretation of your social media activity gives a unique insight into your mind.

In another experiment, researchers showed that altering the order of Facebook feeds could manipulate users’ mood. The tailored way that information is delivered to us could change the way we think and feel in a very real way.

In another experiment, researchers showed that altering the order of Facebook feeds could manipulate users’ mood

But it is not only the tracking and manipulation of our thoughts and feelings that is of concern. The way that information could be used against us is equally worrying. Inferences about our personalities and moods drawn from big data can form the basis for decisions that will fundamentally change our life chances whether in limiting access to financial services, automated hiring processes or risk assessments in the criminal justice system.

Thanks to a DFF pre-litigation research grant, I am currently exploring the ways in which technology and artificial intelligence can be used to try to cross the boundaries into our inner world and to identify where arguments based on the right to freedom of thought could help to challenge these practices before the courts in the UK, Ireland and Spain.

The research is currently in the first phase, gathering relevant reports and examples of practices that could be considered to have implications for freedom of thought. I would very much welcome suggestions for reading and contacts from colleagues working in digital rights in any jurisdiction who would be interested in discussing ways that freedom of thought could be relevant to the work they are doing.

Inferences about our personalities and moods drawn from big data can form the basis for decisions that will fundamentally change our life chances

DFF’s Strategy Meeting 2020 offered a unique opportunity to share my initial research on the right to freedom of thought and to get feedback and ideas from an incomparable range of digital rights activists and experts from across Europe and beyond. The chance to test and discuss ideas, and to gain insights into the work of others, opened new and exciting avenues of inquiry that will feed into my research. It also helped me to reach out to new partners. I left Berlin energised and with a long list of people, organisations and topics to follow up with – DFF’s Strategy Meeting really does make things happen.

But the Strategy Meeting was just the beginning – I would love to hear from people and organisations who are already working on these issues or would like to cooperate on future work to keep the momentum from Berlin going.

Susie Alegre is an international human rights lawyer, author and barrister at Doughty Street Chambers specialising in the right to freedom of thought and technology.

Related links:

(ENG) Freedom of Thought: Findings, Legal Analysis and Next Steps

(ESP) La libertad de pensamiento: Hallazgos, análisis legal y próximos pasos

(ENG) Legal Opinion: The Right to Freedom of Thought and Data Sharing from Mental Health Websites

(ESP) Opinión: Del derecho a la libertad de pensamiento 

Image by George Pagan III on Unsplash