Neuralink (a company owned by Elon Musk) implanted a brain chip, which allows the brain to communicate directly with a computer, in a person by the end of January 2024. With this, a scenario from the series Black Mirror has become a reality.
A chip in your brain is not fiction (1) but fact. According to neuroscientists, "brain reading" - predicting behavior by reading thoughts - is a potential next step (2). One can roughly distinguish two techniques: (a) those that extract information from the brain and (b) those that alter the brain (3). And linking the technology to smartphones could put neurodata on top of the already existing personal data that tech companies already hold. In this era of rapid technological progress, in which neuroscience and technology are going hand in hand, the question therefore arises as to what extent mental privacy - the right to protect thoughts - is safeguarded in the Netherlands, whether or not as a sui generis fundamental right.
The right to freedom of thought is found in both the Universal Declaration of Human Rights and the ICCPR (both in Article 18). At the European level, this right is found in the ECHR (Article 9) and the EU Charter of Fundamental Rights (Article 10). The treaties mention freedom of thought in the same breath as the right to conscience and religion, but do not elaborate on this right in terms of its application and limitations. Therefore, freedom of thought is an oddity. However, the living instrument doctrine of the ECtHR allows that neurotechnological developments and views will also influence the interpretation of the fundamental rights contained in the ECHR.
It is generally accepted that the right to freedom of thought guarantees three distinct substantive freedoms: [1] that one is not forced to reveal one's thoughts, [2] that one's thoughts are not impermissibly altered, and [3] that one is not punished for one's thoughts. It is noted here that the first freedom implies that mental privacy is an "essential feature" of freedom of thought, which in fact includes a right to silence (4). This does not fully clarify the scope of freedom of thought (5). It is therefore questionable to what extent mental privacy is protected under the ECHR. Given neurotechnological developments, this also raises the question of whether mental privacy should be protected under the right to freedom of thought.
Freedom of thought is not explicitly included in our Constitution. That said, there are starting points for mental privacy in the Constitution in relation to neurotechnology.
With respect to techniques that seek to extract information from the brain, the right to respect for private life and informational privacy under Article 10 of the Constitution comes into play first.
These techniques may also raise questions regarding the right to reveal "thoughts and feelings" (Article 7 of the Constitution). The scope of this provision is broad in the sense that it includes all forms of expression. Thus, the expression of thoughts and feelings through neurotechnology could presumably also fall within the scope of this right. The question is, however, to what extent this provision includes the right not to reveal thoughts and feelings.
In addition to Articles 7 and 10 of the Constitution, protection for mental privacy could be found in the right to bodily integrity referred to in Article 11 of the Constitution. Koops and Prinsen have advocated interpreting this right to include the mere recording of information emanating from the body (6). Such an interpretation also covers the recording of brain activity. The right to bodily integrity does not seem to have developed in this direction (7). Nor, in my view, is it necessary, given the protection of personal data that already emanates from Article 10 Constitution, 8 ECHR and derived regulations, including the AVG.
As for techniques that seek to alter the brain (particularly mental states), Article 11 - in addition to Article 10 - Constitution does at least come into play. Some neurointerventions can be invasive, in that they can bring about mental change through surgery. Here one can think of deep brain stimulation. In other interventions, the influence is external and the physical burden is more limited. One example is transcranial magnetic stimulation, in which a magnetic pulse generates current in the brain, stimulating certain areas of the brain.
According to the legislative history of Article 11 of the Constitution, a clear separation between body and mind is not always possible (8). At the same time, the explanatory memorandum makes it clear that physical integrity is primarily protected by article 11, while mental integrity is primarily protected by fundamental rights such as freedom of expression, religion and education. Similar legitimate grounds exist for the protection of our spiritual life as for the protection of our physical body (9). Yet protection of the spiritual, both in theory and practice, seems to be relatively underdeveloped (10). Influencing body and mind can also sometimes coincide, for example in the case of deep brain stimulation. However, the separation between body and mind becomes relevant only when mental states are affected while the burden on the body is limited or nil. The question is whether Article 11 of the Constitution provides adequate protection in these cases and, if not, whether explicit recognition of a right to mental privacy is desirable. A reflection on the right to bodily integrity and possibly mental integrity under Article 11 of the Constitution is certainly not an unnecessary luxury in light of current technological developments.
Once the relevant fundamental rights, provisions of the Constitution and the protection they offer against neurotechnologies have been mapped out, the question is whether the framework of fundamental rights in the Netherlands offers sufficient protection and, if not, whether new or modified rights are desirable. Developments in (neuro)technology do not stand still. It is therefore important to include this topic in the cabinet formation as well. It is in the interest of the Netherlands that this fundamental discussion is not also put on ice; no one likes ice cold mustard after the meal. In any case, with this contribution I hope to have indicated the necessity of the right to mental privacy and to stimulate a political vision about mental privacy in the Netherlands.
(1) See https://www.imdb.com/title/tt5709250/ (Arkangel episode, 2017).
(2) https://nos.nl/nieuwsuur/artikel/2506896-musks-hersenimplantaat-is-heel-gewaagde-sprong-in-het-duister
(3) Gerben Meynen, Neurorecht: hope or chimera? (oration Utrecht), The Hague: Boom legal 2020.
(4) Ahmen Shaheed, 'A/76/380: Interim Special Rapporteur on freedom of religion or belief' (Oct. 21, 2021), para. 26.
(5) Sjors Ligthart, "Mental Privacy as Part of the Human Right to Freedom of Thought?", in M. Blitz and J.C. Bublitz (ed.), The Law and Ethics of Freedom of Thought Vol. 2: Cognitive Liberty and Privacy (Palgrave McMillan 2023), pp. 11-12.
(6) Bert-Jaap Koops & Merel Prinsen, 'Glass house, transparent body. A future look at domestic law and bodily integrity,' NJB 2005, vol. 12, pp. 624-630.
(7) Britta van Beers, "Commentary on Article 11 of the Constitution," in: E.M.H. Hirsch Ballin & G. Leenknegt (ed.), Article-by-Article Commentary on the Constitution, at 7.
(8) Parliamentary Papers II 1979/80 (Explanatory Memorandum), 16068, 3, p. 4-5.
(9) Thomas Douglas & Lisa Forsberg, "Three Rationales for a Legal Right to Mental Integrity," in: S. Ligthart, D. van Toor, T. Kooijmans, T. Douglas & G. Meynen (ed.), Neurolaw: Advances in Neuroscience, Justice and Security (Palgrave Macmillan 2021).
(10) Sjors Ligthart, Tijs Kooijmans & Gerben Meynen, Neuro rights: What is the Netherlands doing with them? Nederlands Juristenblad 2021(22), pp. 1790-1797, p. 1973.
