Forensic brain-reading and mental privacy in European human rights law: Foundations and challenges

A central question in the current neurolegal andneuroethicalliteratureishowbrain-readingtechnologiescouldcontributetocriminaljustice.Someofthese technologies have already been deployed within different criminal justice systems in Europe,including Slovenia, Italy, England and Wales, and the Netherlands, typically to determine guilt, legal responsibility, or recidivism risk. In this regard, the questionarises whether brain-reading could permissibly be used against the person'swill.Toprovideadequatelegalprotectionfrom such non-consensual brain-reading in the European legal context, ethicists have calledfor the recognition of a novel fundamental legal right to mental privacy. In this paper, we explore whether these ethical calls for
recognising a novel legal right to mental privacy are necessaryintheEuropeancontext.Wearguethataright to mental privacy could be derived from, or at least developed within in the jurisprudence of the European Court of Human Rights, and that introducing an additional fundamental right to protect against (forensic) brain-reading is not necessary. What is required, however, is a specification of the implications of existing rights for particular neurotechnologies and purposes.