Forensic Brain-Reading and Mental Privacy in European Human Rights Law: Foundations and Challenges

Sjors Ligthart*, Thomas Douglas, Christoph Bublitz, Tijs Kooijmans, Gerben Meynen

*Corresponding author for this work

Research output: Contribution to JournalArticleAcademicpeer-review


A central question in the current neurolegal and neuroethical literature is how brain-reading technologies could contribute to criminal justice. Some of these 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 question arises whether brain-reading could permissibly be used against the person's will. To provide adequate legal protection from such non-consensual brain-reading in the European legal context, ethicists have called for 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 necessary in the European context. We argue that a right 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.

Original languageEnglish
Pages (from-to)191-203
Number of pages13
Issue number2
Early online date20 Jun 2021
Publication statusPublished - Jul 2021

Bibliographical note

Funding Information:
CB acknowledges funding through the German Ministry of Education and Research, INTERFACES, 01G1622B. TD thanks, for their funding, the Uehiro Foundation on Ethics and Education, the Wellcome Trust (Investigator Award 100705/Z/12/Z) and the European Research Council (Consolidator Award 819757).

Publisher Copyright:
© 2020, The Author(s).


  • Brain-reading
  • Criminal justice
  • Human rights
  • Mental privacy


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