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!