This blogpost is based on a paper that Patrick O’Callaghan presented at the Annual Conference of the Netherlands Institute for Law and Governance, University of Groningen on the 15th September 2023. That paper was inspired by a presentation given by Dr Sjors Ligthart to the Freedom of Thought Academic Network on 30th March 2023 and an intervention by Professor Marc Blitz at that event. Professor Blitz queried whether the common law’s reasonable expectation of privacy test could be relevant to the so-called ‘threshold question’ being discussed by scholars working on the right to freedom of thought.
Legal scholars are increasingly interested in the uses of the right to freedom of thought, understood as distinct from the related rights of freedom of religion and conscience. Much of the scholarship in this emerging field focuses on contemporary socio-technical challenges such as developments in neurotechnology and AI. In democratic legal systems founded on the rule of law and human rights, we place great value on the idea of the individual as a ‘real impenetrable human person’, as Iris Murdoch puts it. We therefore tend to be cautious about anything that has the potential to undermine the integrity of our inner lives or forum internum, whether that is technology that has the capacity to ‘read our minds’ or nudge us towards making certain decisions.
The right to freedom of thought has the potential to be a protective shield in this context because it is generally understood to be an absolute right. This would seem clear enough from a literal interpretation of key international law provisions such as Article 18 ICCPR and equivalent provisions in regional treaties like Article 9 ECHR. But this strength is also a potential weakness since important questions emerge about the practical utility of such a blunt tool. Two questions deserve particular attention:
Should absolute protection extend to all thoughts, even the most trivial?
Are there some forms of intrusion upon the forum internum that are socially and morally acceptable and thus should not be prohibited?
The common law offers a rich source of general principles, extracted from a repository of cases with different factual scenarios, informed by a wide range of human experiences. This blogpost reflects on whether some of these principles might be helpful in seeking to implement or operationalise an absolute right to freedom of thought.
On our first question, whether absolute protection should extend to all thoughts, context is key. A trivial and fleeting thought such as ‘I don’t feel like working today’ may be an innocuous thought in most contexts but can we say for sure that it will be innocuous in all contexts? What if an employer introduces emotion recognition systems in the workplace, ostensibly for employee well-being, but these are misused to determine which employees are ‘good’ or ‘bad’ workers? While a thought may appear trivial at first glance, context is always key and any test we use must be flexible enough to take into account different and changing contexts.
Consider here the reasonable expectation of privacy test. In English tort law, this test is used to establish whether the claimant has a prima facie claim for damages. The question a court asks is whether the set of facts is the sort of situation in which a reasonable person would have an expectation that her privacy ought to be respected. What is important about the reasonable expectation test is that reasonableness acts as an 'objective check'. The individual may feel (on a subjective level) that her privacy has been invaded but the use of the objective reasonable person test means that the community (embodied in the reasonable person) has to agree with her. An adapted version of this test could be used for the right to freedom of thought: does the person have a reasonable expectation that the thoughts in question should be understood a part of their inviolable inner sphere? In other words, is it reasonable to expect that these thoughts deserve absolute protection?
Our second question is whether there are some ways of intruding upon the forum internum that are socially and morally acceptable and should therefore not be prohibited. Consider two examples here: on the one hand, imagine a portable neurotechnology that can accurately read the thoughts of individuals without their knowledge and consent. On the other hand, consider a CCTV camera in a shop that is recording someone’s shopping activities. The first example is undoubtedly intrusive. What about the second? Though someone might be able to claim that the operator of the CCTV camera has the potential to gain insights into their shopping habits and therefore their thoughts, the responsible use of CCTV cameras is generally socially acceptable.
But again, context is key here. The use of a CCTV camera would not seem problematic in most contexts but might be in some situations: much depends on who is being observed, what they are buying and the socio-political context. A political dissident buying a book about human rights in a totalitarian regime is in a very different situation to a person doing some grocery shopping in a democratic country. So, we need a principled approach here, one that is flexible enough to be alive to context, and again we can look to the common law for inspiration.
A test that has sometimes been used in Australian and English privacy cases is whether the conduct on the part of the defendant was highly offensive to a reasonable person of ordinary sensibilities. This test, which also finds expression in the U.S. Restatement (Second) of the Law of Torts (1977) and originates in Prosser's writings, once again introduces the objective reasonable person element, stressing that the reasonable person has ‘ordinary sensibilities’. But only conduct that is highly offensive to the community is actionable, that adverb setting a high bar or threshold for claimants.
When it comes to this second question, whether there are some forms of intrusion that are acceptable, the highly offensive test is potentially useful here. Is the conduct in question highly offensive to a reasonable person of ordinary sensibilities? The nightmarish scenario of a brain-reading machine that can be used without our knowledge or consent would clearly be considered offensive in this way. But the standard use of a CCTV camera in a shop would not be unless there were other elements in the context that made it so. Or consider, for example, a situation where a family member or friend is attempting to change my mind on my life choices. Such conduct would not be understood as ‘highly offensive’ unless there were problematic elements in the relationship between me and the family member or friend e.g. some sort of power imbalance meaning that I was in a vulnerable position.
These are just some ways that common law principles might be useful when trying to conceptualise how the right to freedom of thought could be implemented. Common law principles are sufficiently general to be applicable to a wide range of cases and are flexible enough to take into account changing contexts. Yet, at the same time, they are not so flexible that they become vague and meaningless: they are general tests that can provide useful guidance in individual cases.
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