2020 has put the spotlight on many aspects of our lives as individuals and societies. Covid 19 has not only been a threat to physical health, it has also created a shadow mental health pandemic.  With lockdowns around the world limiting face to face contact, for many, the only way to get help or support for their mental health has been online.  

Accessible mental health services are vital.  But as Privacy International’s 2019 report “Your Mental Health For Sale” revealed, online mental health services are being offered at a high, but hidden, cost.  They found 97.78% of the websites they analysed were sharing visitors’ data, including, in some cases, the answers to self-assessment questionnaires, with third parties mainly for the purposes of advertising including targeted advertising. 

Privacy International brought a complaint earlier this year against the website Doctissimo.fr to the French data protection authority (the CNIL) about the privacy and data protection issues these practices raise.  But the sharing of mental health data for the purposes of targeted advertising also engages other human rights including the right to freedom of thought and the right to mental integrity.  

Building on Privacy International’s investigation, thanks to a grant from the Digital Freedom Fund, in a recent legal opinion (here) I have explored the ways that the right to freedom of thought and the right to mental integrity could be used to strengthen the legal protections around the use of mental health data in a commercial context.  

The right to freedom of thought in the “forum internum” is absolute.  This means that the standard of protection afforded by the right may be higher than that provided by rights like the right to private life which allow for proportionate limitations on the right.  If the practices revealed in the Privacy International report are found to violate the right to freedom of thought in the “forum internum” they could never be justified or compliant with EU law.

The right to mental integrity includes the requirement of “free and informed consent” in the fields of medicine and biology.  The prohibition on using body parts for financial gain in the fields of medicine and biology may also be relevant in terms of the way data on mental health may be used.  

A recent report in the Guardian quoted the charity Money and Mental Health's concerns about the risks of online shopping for people who have experienced mental helath problems.  Using information about an individual's mental health for targeted commercial advertising risks using a person's vulnerability against them for financial gain.  

Privacy International's follow-up work on this issue shows clearly that mental health websites don't have to share your data, but most still do.  Now, more than ever, as the strains of the year combine with the rush for Christmas present buying online, it is time for us to question the legality of these exploitative practices.  European law may just have the answer.

Read full opinion and blog about DFF Grant here