Safeguarding Cognitive Freedom in the EU AI Act: Rethinking Legal Protections Against Manipulative Artificial Intelligence

Cognitive Freedom and Legal Accountability: Rethinking the EU AI Act’s Approach to Manipulative AI

Artificial intelligence today has the capacity to influence human cognition and behaviour in ways that are often imperceptible. This raises urgent questions about cognitive freedom—the right to autonomous thought—and whether current legal frameworks can adequately protect it. The European Union’s AI Act, finalized in June 2024, identifies manipulative AI as an unacceptable risk and bans its deployment. However, vague definitions and regulatory gaps challenge the Act’s effectiveness in holding violators accountable and safeguarding individuals.

This article examines the EU AI Act’s theoretical approach to manipulative AI, highlighting the need for clearer boundaries and stronger oversight. It also presents cognitive freedom as an expanded concept that protects individuals from covert digital influence, beyond traditional freedom of thought rights. Through this lens, the paper advocates for a restructured legal framework that ensures transparency, precise definitions, and continuous multidisciplinary monitoring to uphold mental autonomy in the digital age.

1. Introduction

The human mind is the final sanctuary of personal freedom—where unspoken beliefs and private reflections reside. Yet modern AI systems can subtly shape perceptions and decisions without an individual’s awareness. These technologies are no longer passive tools but active influencers capable of altering thought processes without consent.

The EU AI Act categorizes manipulative AI as an “unacceptable risk” and prohibits such practices. Despite this, the Act’s broad language and lack of clear parameters for identifying manipulation create challenges. Without precise definitions, it is difficult to assign responsibility or prosecute violations effectively. This leaves citizens vulnerable to covert behavioural modification and opens the door for companies to exploit loopholes as AI-driven manipulation grows more sophisticated.

Importantly, the Act is part of a larger regulatory package that includes guidelines and delegated acts designed to clarify its application. Still, the legislation must establish a practical framework that anticipates the nature of AI manipulation and provides effective redress. Protecting cognitive freedom—the right to think and decide independently—is central to this effort.

The term “cognitive freedom” goes beyond traditional legal protections of freedom of thought. It encompasses not only the inviolability of internal mental processes but also protection from hidden digital influences that exploit vulnerabilities in cognition. This broader concept acknowledges how AI-driven profiling, algorithmic curation, and behavioural nudging affect both the content and the conditions of thought formation.

2. Freedom of Thought as a Human Rights-Based Safeguard

Freedom of thought, enshrined in Article 18 of the Universal Declaration of Human Rights, protects the internal forum of beliefs and conscience. It guarantees the right to hold thoughts privately, free from coercion or punishment. This right is fundamental, serving as the origin of many other freedoms.

2.1. Scale of Interpretation

Legal interpretations of freedom of thought vary:

• Restricted: Protects only core beliefs like religious or ideological convictions.
• Balanced: Includes significant but non-religious beliefs that shape worldview, supported by European Court of Human Rights (ECtHR) jurisprudence.
• Expansive: Encompasses all cognitive processes, from fleeting thoughts to emotions, arguing any external interference violates mental autonomy.

Each perspective offers a different lens for considering how AI’s subtle cognitive influences fit into existing human rights frameworks.

2.2. AI and Cognitive Autonomy

Cognitive autonomy—the capacity to think freely without undue external influence—is fundamental to freedom of thought. Advances in neurotechnology and AI-driven behavioural manipulation challenge this autonomy in unprecedented ways.

AI systems can predict, nudge, and alter thought patterns through subliminal messaging and algorithmic curation, often without individuals’ awareness. This demands a re-examination of legal protections to encompass these new forms of intrusion.

While freedom of thought is an absolute right, the scope of its protection must now address covert cognitive manipulation, ensuring that the mental sanctuary remains intact even in digitally mediated environments.

3. The Philosophical Interpretation of Manipulation

Manipulation involves three core elements: deceptive or unethical tactics, strategic and skillful influence, and typically self-serving intent. It often operates covertly, leaving targets unaware of the influence.

Philosophers Ruth Faden and Tom Beauchamp distinguish manipulation from coercion and persuasion by focusing on the degree of control exerted. Manipulation violates autonomy when it controls choices or perceptions without the individual’s understanding or consent.

However, clear criteria to differentiate controlling from non-controlling manipulation remain elusive. This ambiguity complicates legal regulation, especially given AI’s capacity for subtle influence.

Furthermore, regulatory challenges arise because AI-driven manipulation may not cause immediate harm but can erode cognitive autonomy incrementally. Sensory overload, attention-hijacking, and algorithmic fatigue reduce users’ ability to critically assess information, increasing vulnerability to manipulation.

Legislation must therefore recognize manipulation as a gradual, cumulative process that exploits neurological vulnerabilities, not just as overt acts of coercion or deception.

4. The EU AI Act’s Theoretical Framework: Article 5 and the Prohibition of Manipulative AI

The EU AI Act attempts to regulate AI’s manipulative potential by classifying manipulative AI practices as “unacceptable risks” under Article 5, which prohibits their deployment.

4.1. Framing Manipulative AI as an Unacceptable Risk

Article 5 bans AI systems that use subliminal techniques, exploit vulnerabilities, or exercise undue influence causing significant harm. Recital (28) ties these prohibitions to protecting human dignity and democratic values.

However, the Act’s broad terminology raises questions. What exactly constitutes a “subliminal technique”? Where does permissible influence end and impermissible manipulation begin?

Subliminal techniques operate below conscious awareness but still affect decisions and emotions. AI’s dynamic, personalized feedback loops amplify this effect, making influence continuous and harder to detect or opt out from.

The Act’s mention of “exploitation of vulnerabilities” invites debate on whether this applies only to specific groups (e.g., children, disabled persons) or extends to common cognitive biases shared by all humans.

4.2 Vulnerability, Autonomy, and Recital (29)

Recital (29) highlights the covert nature of manipulative AI and the risk it poses to vulnerable individuals. It underscores the need for transparency and safeguards that preserve user autonomy in digital environments.

Yet, without clearer definitions and enforcement mechanisms, the Act risks falling short of preventing subtle cognitive manipulation. Effective regulation demands precise criteria for identifying manipulative practices and robust accountability frameworks for technology providers.

Conclusion

The EU AI Act marks a significant step toward addressing manipulative AI, but its current framework requires refinement to truly protect cognitive freedom. Clear definitions of manipulation, mandatory transparency, and independent oversight are essential to hold actors accountable.

Adopting an expanded concept of cognitive freedom that includes protection from covert digital influence will better reflect the challenges AI poses to mental autonomy. Real-time audits and comprehensive ethical assessments should become standard in AI governance to preserve independent thought and informed decision-making.

Legal professionals engaged with AI regulation must advocate for these improvements to ensure that human dignity and cognitive sovereignty are upheld in a digital world where influence is increasingly algorithmic and invisible.