Legislative Theory for the Protection of Fundamental Rights in the the Era of Digital-Intensification

At the time of rapid transition to a digital society, the protection of fundamental rights based on the freedom of choice (Wahlfreiheit) for analog methods applies to the private sector as well as the public sector. Given that those who are unable to use digital technologies may become a group that has difficulty in social participation and access to necessary information at any time, there may be a need to add a new conceptual approach to ‘vulnerability’ and a new method of protection. Traditionally, the right to health in the Constitution is understood as the right to claim the exclusion of health infringements from the government and the benefits and considerations required to maintain health. However, when society diversifies due to digital transformation, it can be said to include both the right to access health services and the freedom to choose and decide on health services from the perspective of individuals who actually receive health services. If the freedom to choose and decide on health services is considered to be rational only when personal health information (such as test information for diagnosis and medication information) that must be provided during the decision-making process is provided, the right to access personal health information can also be considered part of the right to health. In addition, the right to self-determination in health care services does not simply mean the freedom to use digital methods or to choose between digital methods, but can also mean a decision in a state where there is the possibility of selection that can guarantee the choice of analog methods as well. In terms of legislative theory, it is considered that the protection of fundamental rights begins with establishing a structure that can guarantee the more essential content of fundamental rights. In the area of self-determination, respecting the choice of analog methods in which direct communication among people takes place can be a matter in which the more essential part can be guaranteed. Therefore, in the era of future digital deepening, the protection of fundamental rights should establish a structure that can have a more sustainable effect through legislative measures such as further detailing the criteria for employment and personnel allocation to increase the human friendliness of digital technology and defining the personnel required to facilitate the use of health care services by vulnerable groups as the personnel required for opening or operating a health care institution in the future.