Does a Person Have a Right to Attention? Depends on What She is Doing

Abstract

It has been debated whether the so-called attention economy, in which the attention of agents is measured and sold, jeopardizes something of value. One strand of this discussion has focused on so-called attention rights, asking: should attention be legally protected, either by introducing novel rights or by extending the scope of pre-existing rights? In this paper, however, in order to further this discussion, we ask: How is attention already protected legally? In what situations does a person have the right to attention under current law?Unlike (Chomanski, Neuroethics 16:1–11, 2023), who discusses an overall right to attention, or (Puri, Rutgers Law Record 48:206–221, 2021), who discusses an overall right to attentional privacy, in this paper we focus on two types of situations in which a person’s attention is already protected by legal regulation. Sustained attention-requiring tasks can be jeopardized by distractions whereas attentiveness to certain kind of stimuli can be jeopardized by immersive stimuli. That is why distractions are regulated in situations where an agent has what we call a concentration right and immersive stimuli are regulated in situations where an agent has what we call a duty to be attentive. The further analysis of these situations provides an understanding of the legal means by which attention is already regulated, which can be helpful when thinking about how it should be regulated in the future.