Chilean Supreme Court ruling on the protection of brain activity: neurorights, personal data protection, and neurodata.

This paper discusses a landmark ruling by the Chilean Supreme Court of August 9, 2023 dealing with the right to mental privacy, originated with an action for constitutional protection filed on behalf of Guido Girardi Lavin against Emotiv Inc., a North American company based in San Francisco, California that is commercializing the device "Insight." This wireless device functions as a headset with sensors that collect information about the brain's electrical activity (i.e., neurodata). The discussion revolves around whether neurodata can be considered personal data and whether they could be classified into a special category. The application of the present legislation on data (the most obsolete, such as the Chilean law, and the most recent EU law) does not seem adequate to protect neurodata. The use of neurodata raises ethical and legal concerns that are not fully addressed by current regulations on personal data protection. Despite not being necessarily considered personal data, neurodata represent the most intimate aspects of human personality and should be protected in light of potential new risks. The unique characteristics of neurodata, including their interpretive nature and potential for revealing thoughts and intentions, pose challenges for regulation. Current data protection laws do not differentiate between different types of data based on their informational content, which is relevant for protecting individual rights. The development of new technologies involving neurodata requires particular attention and careful consideration to prevent possible harm to human dignity. The regulation of neurodata must account for their specific characteristics and the potential risks they pose to privacy, confidentiality, and individual rights. The answer lies in the reconfiguration of human rights known as "neurorights" that goes beyond the protection of personal data.

The 'digital transnational solidarity' and protection of health: Commentary to Principle no. 7 of the Rome Declaration.

BACKGROUND: Point 7 of the Rome Declaration is aimed at improving data sharing and technological and knowledge transfer as instruments to implement health policies. OBJECTIVE: The objective of the current paper is to understand if the legal framework (especially at a transnational level) may actually help to achieve the objectives laid down by Principle 7 or if some interpretative or legislative actions will be necessary. METHODS: The paper analyses the legal sources at international and EU levels. RESULTS: The applicable rules are based on the idea that the information and material are forms of 'property' of the individuals or of the states (i.e., the sovereign). According to the traditional idea of property, the owner has a sort of absolute power over the res and is entitled to exclude others from any rights over the thing. The 'property paradigm' may be useful to protect some relevant interests, but it can also affect collective interests, such as those concerning health during the COVID-19 pandemic. CONCLUSIONS: In order to build a global system for the exchange of data and materials as provided for by Principle 7 of the Rome Declaration, a new legal approach should be elaborated which takes into consideration the international corpus of fundamental rights, including research freedom, the right to health and the principle of transnational 'digital' solidarity.

Ethical issues and law-making power: how European case law has rewritten Italian law on medically assisted reproduction.

The paper relates to the actual extent of the "margin of appreciation" of national law-making power in Europe when it takes ethical issues into consideration. This occurs when the use of technoscience may affect fundamental interests. The discretion of the legislature is limited, particularly by the transnational system arising from the European legal integration within both the European Union and the Council of Europe. The two schemes of integration, although there are differences between them, converge to put national legislation under pressure, particularly when it considers ethical matters. As a matter of fact, ethical issues cannot be approached at the national level alone but must be addressed at least at the continental level. An important role in the work of shaping the ethical rules from a continental perspective is played not by the national legislatures, but by the dialogue between the different levels of the judiciary. This role is inescapable and cannot be replaced by legislation, even if it is approved in a transnational plan. The function of the case law in regulating phenomena with ethical implications is studied, taking into consideration the case of Italian Law no. 40 of 2004 concerning medically assisted reproduction. Over the last 15 years, this law, which is inconsistent with many fundamental ethical principles, but has not been amended by the legislature, has been in the process of being corrected by the dialogue between European and national case law.