Safeguarding Podcast – Freedom of Thought, the Forgotten Right with Susie Alegre, Doughty Street Chambers
By Neil Fairbrother
Welcome to another edition of the SafeToNet Foundation’s safeguarding podcast with Neil Fairbrother exploring the law culture and technology of safeguarding children online.
https://traffic.libsyn.com/secure/safetonetfoundation/SafeToNet_Foundation_Podcast_-_Freedom_of_Thought_the_Forgotten_Right_with_Susie_Alegra.mp3
There’s a lightly edited transcript for legibility below for those that can’t use podcasts, or for those that simply prefer to read.
Neil Fairbrother
Mark Zuckerberg has said that Facebook is researching a mind-machine interface. What impact does this have on our rights to private thought? Does this make what today’s guests calls the “Forgotten Right” even more of an imperative than it should be today? What relevance does a concept from the 17th century European Enlightenment have on 21st century digital media? And what does all this mean for children? To discuss this fascinating topic I’m joined by Susie Alegre, international human rights lawyer and Barrister Associate at Doughty Street Chambers. Welcome to the podcast, Susie.
Susie Alegre
Thank you Neil it’s pleasure to be here.
Neil Fairbrother
Could you provide us with a brief resumé please, so that our listeners from around the world have an appreciation of your background?
Susie Alegre
Yes, I am a qualified Barrister in England and Wales, but I have spent most of my career over the past two decades working on international human rights law for regional organizations like the European Union and the Council of Europe and the OSCE and international organizations like the UN and NGOs like Amnesty International. And over the past four years I’ve been focusing on, as you mentioned, the right to Freedom of Thought and the related right to Freedom of Opinion in international human rights law and looking at how those apply to technology and our engagement with the digital world. For the past year, I’ve been researching and writing a book on the topic.
Neil Fairbrother
Okay, well, I look forward to reading that. When is that due for publication Susie?
Susie Alegre
Early 2022. Publishing apparently works slower than the digital world!
Neil Fairbrother
Okay. Now let’s get down to some basics. I mentioned the European Enlightenment and I think the roots of the Freedom of Thought are deeply buried there, but it was enshrined much more recently in 1948 in the Universal Declaration of Human Rights. What is the Freedom of Thought? And is it in fact the case that it has its origins way back in the 17th and 18th centuries?
Susie Alegre
Yes. I mean the concept of a right to Freedom of Thought absolutely as you say, stems from ideas that were being developed around the Enlightenment, particularly in Europe, but also with philosophers further afield, for example, in Ethiopia. And it’s this idea that inside our heads, we should be able to think and develop our ideas about the world and our opinions, unmolested by outside forces, if you like. And that at that time was quite a new idea. If you think historically about, for example, the power of the church of the Spanish inquisition famously, you know, the idea that you should be allowed to think and believe what you like was not really something that was recognized before that kind of Enlightenment period. In fact, it was much more the case that people were expected to toe the line and believe what they were being told they should believe.
And as you say, really in 1948, that idea about the right to Freedom of Thought, which had also been expressed earlier as well, in things like the Declaration of the Rights of Man coming out of the French Revolution and with some of the Founding Fathers of the United States also recognizing the importance of the right to Freedom of Thought. But when it became established in international law was absolutely in 1948, with the Universal Declaration on Human Rights and then the regional human rights treaties, like the European Convention on Human Rights and UN treaties like the International Covenant on Civil and Political Rights that really put these concepts on a legal footing.
And so what you find in the UDHR and reflected in those other instruments is a right to Freedom of Thought along with the right to Freedom of Religion, Conscience and Belief, and also a right to Freedom of Opinion, connected to the right to Freedom of Expression.
Neil Fairbrother
So we’ve got the Freedom of Thought and we’ve got the Freedom of Opinion and also Freedom of Expression and those three are related, but they’re not all the same. What are the differences?
Susie Alegre
Well what you see, looking at the Right to Freedom of Thought, Conscience and Belief is two aspects of the right. One is a right inside your head. So really it’s to think, believe or form opinions as you like inside your head. The other is the right to manifest your religion and belief. And those two rights are dealt with very differently.
So while human rights law allows limitations on your manifestation of your religion or belief or your thoughts through expression, so when you start telling people what you think, or writing about what you think, then human rights law does allow limits on what you can say in order, for example, to protect the rights and freedoms of others.
But while your thoughts, your beliefs, your opinions stay inside your own head, human rights law protects that freedom absolutely, which means that there can never be justification for States or other people to interfere with your right to freedom inside your own head, your right to freedom in what’s known as the “Forum Internum”.
And since 1948 academics and jurisprudence have developed a bit more detail about what is required to make that right real, because one of the fundamental points about international human rights is that they’re not just ideas floating around as they were in the Enlightenment, they are legal principles that need to be made real and effective. So they need to have a practical force in the real world.
Neil Fairbrother
Okay. Well, we might come on to some of that a little bit later. In my introduction I mentioned that you had previously said that this Freedom of Thought is a forgotten right. What did you mean by that?
Susie Alegre
Well, it’s been very interesting since I started working on the right about four years ago that while the right to Freedom of Religion, particularly manifestation of religion, has been a focus of many court cases and many policy and legal developments, and similarly, the right to Freedom of Expression is something that many people are very familiar with, and in recent years we see it increasingly becoming a sort of polemical debate around Freedom of Expression and different approaches to what the right might mean, the right to Freedom of Thought and this idea of what’s going on inside your head has received very little attention from legal scholars or in cases.
In the digital world in particular, what we’ve seen is a really big development around the right protection of personal data and the right to private life, both of which are extremely important rights in the digital space, but both of which can be limited in law, as long as those limitations are established by law, are justified and proportionate and non-discriminatory.
But as I said earlier, this right to Freedom of Thought inside your head is an absolute right, which means that it can never be tampered with, it’s an absolute right in the same way that the Prohibition on Slavery and the Prohibition on Torture are absolute rights that they can never, ever be justified.
And so, while I think privacy is, if you like a gateway right, privacy protects the perimeter of what’s around your head. As we’ve seen developments in technology in the past two decades escalating to try to analyze what is going on, almost in real time, inside our heads and to affect what’s going on inside our heads in real time, this question of the right to Freedom in the Forum Internum is becoming ever more urgent. And so it’s only recently, and really since I started writing about it in 2017, that a focus has shifted to look at what this means in practical terms, particularly in the digital sphere.
Neil Fairbrother
Okay. Now you, you described the Freedom of Thought as having two aspects, two sides of the same coin so to speak, the external and the internal, and you somewhat refer to that in what you’ve just said. So if I write a post on social media, for example, that is an external manifestation of my Forum Internum, is that what you’re saying?
Susie Alegre
Yes. It’s the external expression of what’s going on inside your head. So once you share your thoughts with the outside world, once you say what you’re thinking, you make a post on social media, or you act on your thoughts if you like, then this absolute protection that’s inside your head is lost.
And while you still have a right to Freedom of Expression of your thoughts, or freedom to manifest your beliefs, there can be limitations on that. So for example, your Freedom of Expression could be limited to protect the rights and freedoms of others or in the interest of protecting security or health, for example.
So there are various reasons why the right to Freedom of Expression or the right to manifest religion and belief can be limited and that is because once you start acting on or expressing what’s going on inside your head, then you are immediately having an impact on the outside world. And therefore you’re in the space of limited rights.
Neil Fairbrother
Okay. Now, I think you said in a rather excellent video online that your interest in the Freedom of Thought was triggered by the use of micro-targeting of adverts and other content on social media, particularly in the context of the Cambridge Analytica scandal during the Brexit campaign in the UK. And you also point to Facebook’s research, I think in 2012, which shows how newsfeeds can be gamed to change people’s moods. So there’s little doubt in your mind about the effectiveness of these tools to change, or at least influence the way that people think. They are in fact, encroaching on that sacrosanct Forum Internum for commercial gain.
Susie Alegre
I wouldn’t say that I have no doubt about the effectiveness, but I have no doubt about the intention, which is to manipulate the way people are thinking and influence people for commercial gain or political gain, whatever the reason might be. And I think from the perspective of the right to Freedom of Thought, the question about the legality of those kinds of activities is not really about the effectiveness, it is about the intention. So if a practice is designed to manipulate your thoughts, and it’s very difficult to see how that practice could be a lawful practice under international human rights law.
Neil Fairbrother
Okay. Now in 2019, the Council of Europe’s Committee of Ministers issued a “Declaration on the Manipulative Capabilities of Algorithmic Processes”, which recognized that “…fine grained, subconscious and personalized levels of algorithmic persuasion may have significant effects on the cognitive autonomy of individuals and their right to form opinions and take independent actions.”
And despite this kind of thought, social media companies seemingly by way of my passing digital consent, claim a legitimate interest to expose children to their algorithmically driven content, not just adverts, but comments and posts by others, or indeed group pages. So does this commercial imperative, this a legitimate interest, trump the Freedom of Thought?
Susie Alegre
Absolutely not. I think in terms of what technology companies do and are doing in many spheres, a lot of the practices are able to continue because of a lack of effective regulation. So while they haven’t been ruled unlawful, then effectively you carry on until, you know, until such time, as you’re told that you can’t continue seems to be the approach.
But in terms of legitimate interest, a legitimate interests still has to be lawful and it’s not a legitimate interest if it is violating fundamental rights of individuals. And I think while at the moment there haven’t been any cases on this point, I certainly believe that this is going to be an area where challenges will increasingly be brought to establish clear legal principles around how the right to Freedom of Thought affects the legitimate interest arguments of commercial practices.
And the right to Freedom of Thought is one of the rights that’s highlighted as of particular relevance in the General Data Protection Regulation (GDPR), which governs the processing of personal data across the European Union. And so when you’re looking at what lawfulness of processing personal data means in the context of the General Data Protection Regulation, the GDPR, you have to bear in mind all of the rights that are protected in the EU Charter of Fundamental Rights, which is a core plank of EU law. And one of those rights is this right to Freedom of Thought, which reflects the rights contained in the UDHR and the rights contained in the European Convention on Human Rights. So I think it’s a question of it being a work in progress as to how that legitimate interest works in conjunction with the right to Freedom of Thought.
Neil Fairbrother
If we took the case of a young teenage girl who was on social media, and as a result of looking at social media, she started to look at sites that pushed self-harm and suicide content to that child. And as a result, she then committed suicide. Is there a case there against the social media companies involved under this Freedom of Thought right?
Susie Alegre
Whether there’s a legal case to be brought, I think would depend very much on the circumstances of particular case, but I think certainly those arguments are relevant in terms of looking at the way her thoughts may have been manipulated or her thoughts or opinions may have been manipulated by the way that information was delivered to her.
And I think one of the things that’s important to bear in mind in this question when you’re looking at expression and opinion, that the right to Freedom of Expression, for example, includes the rights to information and those to impart and receive information. And I think one of the issues is that the way that these issues have been framed is around the content, if you like, and the right to Freedom of Expression arguments around the content.
But what I think is important to explore in terms of the right to Freedom of Opinion and the right to Freedom of Thought in the Forum Internum is the delivery methods and the way in which content is curated, if you like, and delivered in a way that potentially manipulates the way we think, or the way we develop our opinions and the opinions that we hold.
Neil Fairbrother
Okay, but content isn’t always delivered or curated by an algorithm. It can be done by other people. So in the case, for example, where a child is being groomed for sexual exploitation, one tactic that predators use is to desensitize the child to sex, perhaps by showing the child pornographic or even illegal images to change the way that they think. So is that an attack or a violation of the Forum Internum? After all the intent is clearly there to abuse a child?
Susie Alegre
Yes. I mean, I would say that absolutely that’s an issue that engages with the right to Freedom of Thought and Opinion in terms of manipulating and targeting a child to manipulate their world view. And one of the things as well around, as I said earlier, the international human rights law really needs to be made real and effective on the ground. And what that means for States is that they have an obligation both to refrain from doing things that violate our rights, but also to protect us from other people or companies that may want to violate our rights.
And so what that means is that human rights law puts an obligation on States to have adequate law and regulation to protect us from this kind of activity, to protect our children in particular from this kind of activity. So from the human rights law perspective, State’s obligations to make sure that children are protected from this kind of activity is where the human rights law bites, if you like. So human rights law is connected to criminal law as well in terms of ensuring that there are adequate legal frameworks and adequate resources to protect our children from these kinds of violations of their rights by private actors.
Neil Fairbrother
So a sexual predator then might be thinking about abusing children, in their own Forum Internum and their opinion may be that this is perfectly okay. Those rights of that predator are protected. Those thoughts are protected by the Freedom of Thought and Freedom of Opinion rights. But is there a case that says, well actually, if we can change those opinions, we can stop those thoughts, we can therefore stop the abuse, or does this start to take us into the territory of thought crime?
Susie Alegre
I think this is the problem. And as one noted academic put it, to paraphrase, there are lots of bad reasons why the State may want to know what you’re thinking and very few good reasons. And that when you then look back to the history of inquisitions and also of the sort of activities of authoritarian, repressive regimes to extract thoughts, or to make people think in the right way, that’s when we understand why the protection of Freedom of Thought is absolutely crucial.
And in the kind of case you’re talking about, you know, of course we would love it if everybody thought happy thoughts and positive thoughts and, you know, wanted only the best for our children. And as soon as people behave or act or speak in a way that is demonstrating a threat to our children or posing a threat to our children, then that is the point where the State can take action and must take action to protect our children in certain circumstances.
But that’s very different to the State getting inside the head of somebody or monitoring the thoughts of people in order to change them. And I think it’s very dangerous territory this kind of question of where is the line around our Forum Internum. And as I say, it’s not at all to say that predator that you’re talking about is allowed to act on, or even talk about necessarily, these ideas and opinions. But that is very different from taking a further step to, if you like, monitor the thoughts and opinions that anyone in the population may be having in order to identify whether or not any of those people are having thoughts that might later manifest themselves as a threat. I don’t know if that makes sense, the dividing line between what’s going on inside your head and what was going on outside your head.
Neil Fairbrother
Okay. Now Mark Zuckerberg has talked about his company developing a mind computer interface, where you could interact directly with Facebook and other social media properties without using a keyboard. Now famously, or in famously depending on your point of view, in the case of Cambridge Analytica, Facebook collected and sold huge quantities of personal data just from today’s version. Does this kind of commercially driven mind machine interface pose a challenge to all of our Fora Interna, if that’s the correct term?
Susie Alegre
Yes, absolutely. I mean, one of the principles of international law that is used often in the environmental sphere, but I think it’s also relevant in the broader technological sphere is the precautionary principle, and that is the idea that you need to take precautions before developing or before allowing for scientific or technological developments that fundamentally undermine human rights. So it’s about, I suppose, doing an impact assessment of the potential impact of something before you develop it and essentially deciding whether or not this is something that should be developed or could be developed in line with human rights principles.
And at the moment, as I said earlier, I think there’s a real gap in regulation or in legal protections in practice to prevent the development of research and technology that has the potential to really destroy all our human rights and our democracy.
And once you look at developments that fundamentally undermine our ability to hold independent and free thoughts and opinions, it’s very difficult to see how we row back from that. Essentially once that damage is done, it’s very difficult to claw back your autonomy once you’ve lost it, because in a sense, you don’t even know you lost it. Once it’s gone, it’s gone.
And so in my view, yes, there’s a really urgent need to put the brakes on the kind of developments that could see a complete loss of human autonomy and for us to really question what should be allowed and what shouldn’t be allowed in order to have the kind of societies that we want for our future and for our children’s futures.
Neil Fairbrother
ho should decide this? Should this be for parliament? Should it be for Ofcom, the putative internet regulator, or should it be for commercial companies?
Susie Alegre
Ultimately our States have the responsibility to protect our human rights and they need to do that with effective laws. And while there are obviously huge challenges in terms of dealing with technology because of its cross border nature and the impact of what happens in the US or China will ultimately have an impact on all of us and all of our global security and all of our rights globally, but each state has the responsibility to do what it can to protect the people within its jurisdiction. It’s ultimately parliament and our lawmakers to start looking at these questions seriously, looking at these questions in a more holistic way and taking action to create legal frameworks that do protect us now and in the future.
Neil Fairbrother
Okay. Now, one of the consequences of the EU’s GDPR, which you mentioned earlier, is that there is a confusion about minimum age of digital consent. It’s either 16 or 13, depending on where you are. Now, there is a large difference between the developing adolescent brain of a 13 year old compared with that of a 16 year old and indeed between both of those and a 10 year old. Should the digital age of consent be raised to 16 because their adolescent brain may well be more developed and maybe better able to withstand these kinds of intrusions into their Freedom of Thought and their Forum Internum. And if so, do we need to have some kind of age verification to identify who are children?
Susie Alegre
To be honest I think the question of consent is a very complicated one. It’s very hard to give a blanket answer as to what a digital age of consent should be and what it means. You know frankly, there are very big questions around what consent means in the digital space at all. You know, whether we’re talking about adults or children and whether there are certain practices that you should never be allowed to consent to.
So if, for example, you look at the case of Privacy International last year [they] issued a report on mental health websites sharing data with third party organizations, potentially for the purpose of targeted advertising. But when you look at what it means to consent to your data when you access a mental health website being shared for advertising purposes, you know, that that raises a very big question about what you should be allowed to consent to or you know, what consent means at all.
So I’m not sure that having a specific digital age of consent is a subtle enough instrument if you like to deal with the wider questions about what consent means and what you’re consenting to. And I think the Children’s Rights committee at the UN, which is currently working on a General Comment on children’s rights in the digital age, which looks at this question of the varying needs and capacities of children in the digital sphere, I think will be a very useful tool for deciding how to deal with this in practical terms, which allows for a more sophisticated view, or a more nuanced view, of what consent means in the context of children in the digital space.
Neil Fairbrother
Okay. Now you said in a paper that you published that “…applying the precautionary principle to the potential impact of technology on the human mind through the lens of the right to Freedom of Thought could provide useful guidance in terms of clear directions for innovation and technological development and a map that indicates areas that will not be legitimate for development”. If you could build a machine that could protect children’s in particular Freedom of Thought, their Forum Internum, what might it look like? What might it do or not do?
Susie Alegre
Well I have to say, I’m not sure if it quite answers your question, but one of the things that concerns me about discussions around digital rights is where it moves to technology companies being the solution rather than effective laws and regulations being the solution to guide technologists in the direction or their developments, if you like. So what it would do or not do? I mean, one of the things I think would be an important tool for children is to protect the right not to be bombarded with unwanted information.
Neil Fairbrother
So should children’s social media accounts then the free from algorithmically driven content?
Susie Alegre
I think it depends what the algorithm is designed to do and how the algorithm is designed to deliver the content. And, you know, as our interactions with technology and AI become ever more complex, there are ever more complex lines to be drawn as to what’s OK and what’s not OK if you like. So I think it’s very difficult to say “No” to algorithmically driven content. It depends how the algorithm works, what the algorithm is designed to do and why it’s designed that way, if you like.
So there isn’t an easy answer, but what I think is important is for the people who are designing the algorithm to be informed and understand where those lines might be and what the issues they should take into account are in terms of the lines that protect the Forum Internum.
Neil Fairbrother
Okay. So regulation is often said to be playing catch up with technology, but is this actually the case? The UDHR was agreed in 1948. We’ve celebrated the 30th anniversary of the UN CRC. Isn’t it more a case that technology has simply ignored these regulations, as in the words of Mark Zuckerberg, “Move fast and break things”?
Susie Alegre
Absolutely. In my view, as you say, we have this international human rights law framework, the question is whether we’re using it and whether we’re making it real and effective. So international law has it and that international law is reflected for example, in the UK, we have the Human Rights Act, which includes the right to Freedom of Thought as one of the rights as protected in the UK. Many countries around the world will have those rights enshrined in their constitutional right to Freedom of Thought, for example, it’s reflected in Canadian constitutional law and other laws around the world. So we have those laws. The question is how they are being applied in practice.
And one of the things that I think is, is a danger in the digital’s fare is this idea that we need new rights. We need new frameworks. What I think we need is really more detailed protections of the international frameworks that we have. A more detailed understanding of how they apply to the developing digital practices.
Human rights law is what’s known as a living instrument. That means it develops and evolves to reflect the realities on the ground and the social realities as they develop in countries and regions and around the world. And so there’s no reason why these rights as they were agreed and enshrined in law over 70 years ago or not relevant. The question is just how we make them relevant and how we enforce them and how we protect them in our domestic laws and in our regulatory framework.
Neil Fairbrother
Well, I’m sure you’re fully aware of the Online Harms white paper and the impending legislation based on it. Freedom of Thought wasn’t mentioned in the Online Harms white paper, should it have been?
Susie Alegre
Yes, absolutely. Freedom of Thought I think should be recognized in all of this type of legislation and regulation. It goes back to the point that you raised earlier about it being a forgotten right. I think it’s a work in progress and my work for the last four years has been about raising the right to Freedom of Thought and its relevance to policymakers to give a slightly different perspective to the straightforward questions around privacy and Freedom of Expression and data protection that have been becoming the common language of digital rights, if you like. It’s to really flag how this can give a very different perspective to what is permissible and what is not.
Neil Fairbrother
Okay. One last question, if I may Susie, because we are running short of time, unfortunately. Are we on the cusp of a dystopian 1984-style future or is the future for children’s digital lives a bright one?
Susie Alegre
Well, if I’ve got anything to do with it, I still believe it can be a bright one. And that’s why I’ve been working on this issue for so long. I don’t believe in giving up in the face of a dystopian future, I believe still in the human rights that were enshrined in the UDHR and their potential for protecting our rights and our children’s rights now and in the future.
Neil Fairbrother
Okay. Thank you, Susie. We’re going to have to leave it there. I really appreciate your time. I could have talked about that with you all day. It’s a totally fascinating area with many, many implications and I’m sure we’ll be hearing a lot more about the Freedom of Thought.
Susie Alegre
Yes. My pleasure. Thank you very much.