This policy brief is part of CIGI’s project on freedom of thought: Legitimate Influence or Unlawful Manipulation? Find out more at: www.cigionline.org/fot
Policy Brief No. 5 — January 2024
Technology-Facilitated Mind Hacking: Protection of Inner Freedoms in Canadian Law Emily Laidlaw Key Points → Freedom of thought, belief and opinion are protected in section 2(b) of the Canadian Charter of Rights and Freedoms, but that protection only applies against actions government might take. → The present threat to our rights to these inner freedoms does not come primarily from government but from corporate actors, which, as private parties, do not owe direct constitutional duties to the users of their products or services. → Government has a duty under international human rights law to protect individuals from corporate interferences with rights. → All levels of government should implement these freedoms in law and policy through renewed focus on law reform in the areas of privacy, artificial intelligence and online safety laws.
Introduction Freedom of thought, belief and opinion have gained traction internationally as human rights that are infringed by technology-facilitated “mind hacking.” Consider the immersive influence of virtual reality (Loewen-Colón, Mosurinjohn and Amarasingam, forthcoming 2024), the use of psychographic targeting of users for influence campaigns,1 the dark patterns of website design that nudge consumer behaviour (Mathur et al. 2019), the psychological influence of memes and videos (Fielitz and Ahmed 2021), and the impact of recommender systems on youth mental health (Amnesty International 2023). These examples scratch the surface of the various ways our minds are being slowly and subtly hacked. This policy brief explores the status of these rights in Canadian law. Do we, in Canada, have legal rights to freedom of thought, belief and opinion? If so, do those rights extend to protect us from technological interferences? Do we have rights to protect us against the activities and products of technology companies? The short answer is that, not surprisingly, it is complicated. Crucially, the legal uncertainty in this area creates a hurdle to making any use of this
1
Joint investigation of Facebook, Inc. by the Privacy Commissioner of Canada and the Information and Privacy Commissioner for British Columbia, PIPEDA Findings #2019-002 (25 April 2019), online: Office of the Privacy Commissioner of Canada <www.priv.gc.ca/en/opc-actions-and-decisions/ investigations/investigations-into-businesses/2019/pipeda-2019-002/>.