July 27 2022

The freedom to think: stating the obvious?

MDX legal academic Beth Shiner explains how the freedom of thought, which is the foundation of all rights, has been impacted by the rise of technology ahead of an international virtual symposium

The right to freedom of thought is recognised as a distinct right in international human rights treaties and in domestic law across multiple jurisdictions. But the case law, scholarship, and commentary on the right to freedom of thought is relatively sparse. Perhaps this is because no one can stop us from thinking or even know what we are thinking. Or, because it is without practical application. Finally, as Bublitz argues, it has been neglected because it is an absolute right and courts are hesitant to make use of such a powerful tool for fear of creating undesirable precedents. But, if it so self-evident, why did the drafters of the Universal Declaration on Human Rights, and almost every human rights instrument since, both include the right and discuss what it meant? More than just symbolic, the right has been described as “sacred” and the foundation of all other rights.

During the drafting of Article 9 European Convention on Human Rights, 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 his intellectual faculties and of his conscience”. Nevertheless, the right has been almost completely overlooked in favour of its favoured siblings: freedom of expression, conscience, religion, and privacy.

More recently, scholars and lawyers have begun to pay increasing attention to this right, especially in the context of socio-technological transformations (e.g. Blitz and Bublitz; Alegre), including neuroscience. There is also a concern about the high rate of data collection and analysis for use in algorithmic decision-making in our everyday lives that might undermine human autonomy – the basis, it may be argued, for the right to freedom of thought itself. That such concerns have particular potency in politics deserves attention although there still has not been a single case before the European Court of Human Rights, the Inter-American Court of Human Rights nor the Supreme Court of any country (that we know of) other than Spain, that engages with the question of whether, and to what extent, algorithmic decision-making might be undermining the free exercise of our political agency.

Technology provides an interesting test case for how the right might apply and to what extent, but it does not allow us to appreciate the varying social, cultural and legal contexts in which the right may, or may not be, protected right now. For example, the Special Rapporteur on freedom of religion or belief published the first ever UN report on the right to freedom of thought and identified seven areas where the right might already be engaged – not only in futuristic technological scenarios. These areas are:

  1. torture or cruel, inhuman or degrading treatment or punishment
  2. surveillance
  3. coercive proselytism, anti-conversion and anti-blasphemy efforts
  4. intellectual freedom and education
  5. existing and emerging technologies
  6. mental health
  7. conversion practices

Furthermore, we are being to see the right take shape as its (tentative) scope looks to be four-fold: (a) freedom not to disclose one’s thoughts; (b) freedom from punishment for one’s thoughts; (c) freedom from impermissible alteration of one’s thoughts; and (d) an enabling environment for freedom of thought (UN A/76/380, 2021). However, this is just the beginning and much more needs to be examined before this right can be relied on.

International Symposium on the Right to Freedom of Thought: Call for Participants

The literature on the legal contours of the right to freedom of thought is sparse. For this reason, we will be hosting an international virtual symposium on the right to freedom of thought at 12noon UK/Irish time on Wednesday 23 November 2022. The purpose of the event is to sketch out the legal status and applicability of the right to freedom of thought across multiple jurisdictions. We are seeking expressions of interest from potential participants. We are eager to hear from lawyers in as many different jurisdictions as possible but are particularly interested in hearing from lawyers in Africa, Asia, Latin America and Oceania.

The purpose of the symposium is to sketch out the legal status and applicability of the right to freedom of thought, which might be contained in a national bill of rights or a regional human rights treaty. Our plan is that this event will be the first step in a larger research project on the right to freedom of thought, which will lead to an edited comparative study of the interpretation and protection of the right. For more information, please see the attached flyer.

Bethany Shiner is a member of faculty at the School of Law, Middlesex University, London, and a DPhil candidate at the University of Oxford, UK.

Patrick O’Callaghan is a member of faculty at the School of Law, University College Cork, Ireland.

Photo by ThisisEngineering RAEng on Unsplash

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