The right to mental integrity in the age of manipulation  

A mural in Sydney, Australia. Photo: Jürgen Wallstabe / Shutterstock

For over a century, since the invention of modern marketing, companies have been using psychological behaviour control techniques to create ever-new desires within society. If we purchased items only based on our actual needs, economic growth could not be sustained – hence the social programming of desire. The essence of advertising lies in building unconscious emotional associations that later influence the consumer. These marketing strategies are not identifiable to individuals, yet they demonstrably shape human decision-making and preferences – all the way down to the neurological level. As these behaviour control techniques become more sophisticated and intertwined with digital technologies, people are proving increasingly vulnerable.

The law, which traditionally protects only bodily integrity, must awaken to the need for safeguarding mental integrity as well. EU regulation has already begun moving in this direction. This can be seen in the creation of the ProtMind project, as well as a declaration concerning the right to mental integrity. However, markets are not the only actors employing behaviour regulation. Governments are also increasingly complementing traditional governance tools like sanctions and financial incentives with behavioural public policies. The “nudge” movement in the United States insists that psychological regulation preserves individual freedom, whereas Central Europe is more accustomed to a paternalistic approach. This raises the question of how can citizens’ mental integrity be safeguarded?

The economy of desire

For a long time, I could not understand what Coca-Cola commercials were actually about. They never said anything specific about the product itself. There was nothing like “drink it because it tastes good,” or “the sugar gives you energy.” Instead, the ads always showed smiling young people drinking Coke together, happily. The images radiated warmth. Now I understand that Coca-Cola is not really selling a drink – it is actually selling the feeling of warmth. This is one of the cornerstones of modern marketing: dressing up products with magical promises. A shoe is no longer just a shoe that protects your foot – it becomes something that expresses your identity. And why not have five pairs of shoes to show how colourful you are? But the truth is, a shoe will not make you interesting, exotic holidays will not help you find yourself, and Coke will not give you a sense of belonging. These magical associations were not always part of our daily life.

Edward Bernays, the nephew of Sigmund Freud and the father of both propaganda and consumer marketing, worked in the US Army’s communications division during the First World War and also took part in the Paris Peace Conference. He was fascinated by how war propaganda managed to frame President Wilson as the defender of democracy and freedom through actions such as the big loans given to Britain and France. This is despite the fact that America’s entry into the war had many other motives. This experience led Bernays to a realization: if propaganda could be so effective during wartime, it could be just as indispensable in peacetime. That is when he coined the term “public relations” (PR) to replace the word “propaganda”, which already carried negative associations. Yes, a PR professional is essentially a propaganda expert, to use an old term. The profession has become so successful that while in the United States in 1980 the ratio of journalists to PR professionals was two to one, today it is more than six to one. That says something about the nature of today’s information landscape.

To see how deep the rabbit hole goes, it is useful to take a look at how smoking was programmed into society. Since the early 1900s, tobacco companies have been trying to tap into the underused female market. The first major campaign came from the company Lucky Strike, which used the slogan “Reach for a Lucky instead of a sweet.” The idea was simple: smoking suppresses appetite, so women could use cigarettes to control their weight and stay slim and attractive. They also began selling the idea to women that beauty equals thinness. In doing so, they aimed to create tension between women’s ideal self – the person they wanted to become – and their current self-image – the way they saw themselves. This gap was meant to drive them to take action in order to close this metaphorical distance.

Women thus had started smoking, but only in private. This was not yet happening on the streets or in public spaces. Marketers calculated that if they could break this barrier, they could double cigarette sales. As a result, a new strategy was born. Edward Bernays consulted a prominent psychoanalyst to ask what cigarettes symbolized for women. Women wanted to smoke as a way to claim something traditionally reserved for men. This drew on Freud’s theory of “penis envy”, the idea that women, frustrated by their lack of male power, envied the phallic symbol of dominance. Cigarettes became a surrogate – a symbol of autonomy. He convinced a group of ten young women to confidently light cigarettes while walking in the New York Easter Parade. Photos of the event were widely published and framed in the media as “torches of freedom” – selling cigarettes as symbols of emancipation and gender equality. Lucky Strike also bought newspaper ads with headlines that blurred the lines between feminism and smoking: “Women are free: an ancient prejudice has been removed.” Cigarette sales jumped from 13.7 billion in 1925 to 43.2 billion just five years later. But this “liberation”, orchestrated by marketers, came at a cost: lung cancer rates among women quadrupled after the introduction of so-called “feminine” cigarette brands.

Tobacco companies used the very same strategy again in the 1990s, when the Iron Curtain fell and markets in former socialist countries opened up. They began promoting smoking as a symbol of western, modern, and emancipated womanhood. A 1990 editorial in Tobacco Reporter highlighted the growth potential of women in countries like Hungary and Poland: “Women are becoming more independent and, as a result, are leading less traditional lifestyles. One symbol of their newfound freedom could easily be the cigarette.” The programming worked the second time too. Between 1993 and 1997, smoking rates among women aged 12 to 25 in former East Germany nearly doubled, rising from 27 per cent to 47.

Early marketing worked hard to transform Americans from citizens who bought based on need into consumers driven by desire. Advertisers now globally use unconscious drives and emotional needs that motivate people. Modern corporate marketing is responsible for embedding a culture of disposability into society. This makes people feel incomplete unless they travel to distant, exotic countries. It has also contributed to the global diabetes epidemic.

In my opinion, states must intervene – whether through legal or psychological means. A liberal might say this is a paternalistic approach. But this is a strange argument. Persuading people to do what is good for them is often labelled paternalistic. However, persuading them to do what benefits us (as sellers or corporations) is seen as a vital part of capitalist free competition and fair play. In the same year that the US government spent two million dollars on nutrition education programmes, McDonald’s spent 1.4 billion dollars on direct advertising. This was on top of another 500 million dollars for its “We love to see you smile” campaign. Laws and states cannot be psychologically neutral, as there is no neutral design for human decision-making. Every environment is a choice architecture that shapes our decisions.

The case for the legal protection of mental integrity

The law today does not deal with mental manipulation. While fraud is punishable, the law almost completely overlooks the fact that a multi-million-dollar global industry is working to change people’s inner states, desires, behaviour, and ultimately their personality. This is the problem of mental manipulation. The neglect of the mind also appears at the level of fundamental rights. While most countries protect physical integrity as a fundamental right, very few address the issues of mental integrity and cognitive freedom. However, early signs of progress are emerging. Article 3 of the European Union’s Charter of Fundamental Rights now includes the right to mental integrity alongside physical integrity. In addition, the EU has established a dedicated research group called ProtMind to examine the legal and ethical questions surrounding the growing use of psychological behaviour control by both market actors and states.

Just as it is clearly wrong to interfere with another person’s body without consent or urgent justification (e.g. in a medical emergency), it is similarly wrong to alter another person’s mental states without their consent. Practices such as hypnosis, brainwashing, aversion therapy, or subliminal influence against a person’s will intuitively violate basic ethical standards. Deception and manipulation, while not always illegal, are morally questionable, and certain forms (such as fraud or defamation) are already criminalized. The legitimate question is where to draw the legal line for less extreme but still significant mental intrusions. This involves forms of influence that are not coercive in a legal sense, but which nonetheless shape preferences or behaviours in systematic and possibly harmful ways.

One counterargument is that the right to mental integrity may already be covered under existing human rights norms – such as freedom of thought, conscience, religion, and expression. Indeed, freedom of thought is considered an absolute right under international law. The Oxford legal scholar Malcolm Evans noted already in the 1990s that if freedom of thought were interpreted broadly, even advertising could fall under restrictions. For instance, under a literal reading of the International Covenant on Civil and Political Rights, many forms of commercial persuasion could arguably be prohibited. However, traditional legal interpretations typically restrict these rights to domains of public discourse and moral or religious belief. The cognitive intrusions practiced by modern marketing do not clearly fall within this scope.

While the protection of mental integrity should primarily be a matter of political and civil engagement rather than criminal law, the legal scholars Jan Christoph Bublitz and Reinhard Merkel have proposed a new criminal norm. They suggest that indirect interference with another’s mind – through stimuli aimed at bypassing mental control and causing serious psychological harm – should be criminalized unless it falls under acceptable behaviour, such as the exercise of free speech. According to their view, “stimuli” can take many forms, and the law must be able to cover a wide range of actions. The concept of “indirect” interference includes cases where influence occurs not through direct coercion, but via manipulation that affects unconscious mental processes.

This raises the question of what it means to “bypass mental control”. Drawing on dual-process theory, it is possible to understand this as an attempt to bypass reflective (System 2) reasoning and target automatic, intuitive (System 1) responses instead. Based on these arguments, I argue that a legal regime for protecting mental integrity should rest on the following three criteria:

(1) Systematic interventions

(2) The person affected did not agree or did not even know

(3) The intervention targets fast, automatic thinking – not slow, rational thinking

The first rule prevents lawsuits based on normal daily interactions. For example, you cannot sue your neighbour just for how they asked you to feed their cat – that is not a systematic intervention. True systematic interventions require powerful entities with enough resources to influence many people’s behaviour in planned ways. We should also ask if there is an economic motive behind the behaviour change? The second rule allows some systematic influence if the person agrees. For example, the state may use such methods for public health, but only if it has citizens’ consent. The third rule helps us define what counts as a violation of mental integrity. According to psychology, fast and slow thinking work differently. Persuasion that targets slow thinking would not be banned. But strategies that test automatic behaviour or use emotional tricks would violate mental integrity. Categorizing these cases is hard, but with time, legal practice can develop clearer rules. A final regulation that protects mental integrity against market forces – if grounded in fundamental rights – can also be applied to limit state intervention too.

These are not meant as final legal texts, but to spark your imagination. Banning a big part of today’s advertising might sound extreme. But imagine telling someone a century ago that smoking would largely disappear from society. This year, the UK banned cigarette sales for future generations. Social norms change – sometimes quietly, and sometimes through conflict. I believe laws can change behaviour, and people slowly adjust their attitudes to match. So yes, law can shape social habits. Laws can also solve what is hard to do alone, but easy together. One person might not resist manipulative marketing. However, strong consumer protection can help everyone. Right now, companies freely use behaviour-shaping technologies that most people do not even notice. But just because something is the norm today does not mean it is normal.

This text was prepared in the framework of the 2024/2025 edition of the Solidarity Academy, an international project of the European Solidarity Centre, the Friedrich-Ebert-Stiftung Warsaw, and New Eastern Europe. The project aims to inspire and support the development of young leaders across Europe.

Samu Czabán is a legal scholar and behaviour analyst with a doctorate in law and psychology from Eötvös Loránd University (ELTE). He is the author of numerous articles published in the social science magazine Új Egyenlőség (New Equality).

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mental integrity, psychology