The Republic of South Korea is one of the most advanced countries in technology, almost leading the digital transition in the world. Despite the COVID-19 pandemic and its tragic consequences, South Korea entered in top five most innovative countries in 2021, officially becoming the fifth most leading country in innovation and leading on high-tech exports and researchers. Furthermore, according to the same report, South Korea is first in the sub-pillar ICTs, with high scores on all its items, namely ICT access and use, government’s online service and e-participation. Indeed, according to the OECD, households with broadband Internet access at home are 99.75% of the total in 2020, signing the highest percentage of all OECD countries.
With such an environment and high Internet saturation, defending and addressing individuals’ digital rights becomes a priority. However, defining digital rights is not easy. Hutt defines them not as rights in and of themselves, but rather related to other human rights already present in the “real realm”, particularly freedom of expression and personal data protection (privacy). In this perspective, States need to ensure that the good protection and preservation of these rights are followed in their territories. Nevertheless, due to the intangible nature of cyberspace, it becomes very difficult for Governments to effectively regulate all the juridical and digital-related issues. One may state that it would be easier to address digital rights with the same methodologies (and law constructions) of the “real realm”. Nonetheless, the Internet is very complicated, especially when it comes to its regulations and “governors”.
As for the rights in the real realm, the Constitution of South Korea guarantees the right to privacy and freedom of expression as fundamental human rights. It must be considered that the country has transitioned from an authoritarian model of government to democracy in the past three decades. Also, according to the Economist Intelligent Unit, 2020 has marked the passage of South Korea from a flawed democratic country to a full democracy for the first time. Thus, fundamental rights protec tion is a rather novel issue in South Korea, especially when it comes to digital fundamental rights legislation.
Regarding personal data protection, in 2011, South Korea adopted the Personal Information Protection Act (PIPA), which was amended in 2020. This rather specific set of regulations tends to strictly regulate the collection, usage, and disclosure of personal information by the Government, private entities, and individuals. In January 2021, there was an additional amendment, which introduces the right to data portability and diversifies the methods of transferring personal data overseas. Many commentators considered PIPA as the strictest set of rules in personal data protection in the world.
However, due to Covid-19 countermeasures, many issues have arisen towards the right to digital privacy and data protection, especially due to the Government option for using digital technology to collect, gather, analyse, and also disclose personal information.
Through self-health and self-quarantine safety mobile applications and the Data-based Epidemiological Investigation and Supporting System a huge amount of personal data was collected and analysed for health purposes, along with other data collected through location tracking, card transactions and CCTV recordings. Indeed, the Korea Centres for Disease Control Prevention (KCDC) operates in cooperation with the National Police Agency, the Credit Finance Association of Korea, three telecommunication companies, and other 22 credit card companies. The identification process is possible through the analysis of GPS data, mobile information, and credit card transaction history. This big data analysis allows officials real-time data feeds on COVID-19 patients and the possibility to quickly identify the transmission patterns. The Covid-19 Epidemiological Investigation Support System was designed thanks to the City Data Hub under the National Strategic Smart City Research and Development Program – which is something not to underestimate.
According to Yoon, these measures not only allowed the government to avoid lockdowns and thus to contain the economic backsides, but also permitted strong surveillance, facilitated the transition to a digitally advanced state and enabled nationalism through a digital utopian discourse. Undoubtedly, this situation has contributed to exacerbating the already present dilemma between public security surveillance and the right to privacy and personal data protection. More specifics here are needed.
On the one hand, we must consider that the larger population of South Korea has positive insights and consideration towards the government’s measures when regarding the pandemic. It can also be considered a “lesser evil effect”1: personal data collection and analysis are tolerated in an emergent situation.
On the other hand, the evidence of online Government surveillance was already stressed by the UN special rapporteur on the right to privacy in July 2019, who proved allegations of state surveillance from 2016. According to the Freedom on the Net 2020 by the Freedom House, the country has a partly free Net environment, and most is due to the strong presence of the Government. Many concerns on this issue especially arise after the launch of the Digital New Deal Plan in July 2020. Taking advance from the relatively good results of pandemic management, the Plan contemplates advancement in digital technology infrastructure and data economy, which can be used to explore the big data-based economy and generate more jobs. Fifteen big new data platforms will be constructed by 2025 (with an investment of 560 billion KRW). In this perspective, Korea is proposing itself as a world leader towards digital transformation.
However, the lack of citizens participation in the process of collection, organisation and analysis of the data has preoccupied the civic society, which sees the Deal as a political manoeuvre to nourish enterprises and big corporations with citizens’ data.
Although the Government has guaranteed the temporality of the measures, there are concerns that the situation will constitute “a new normal” and be incorporated in the everyday life, as the goal is to speed the digital transformation process.
1 The “lesser evil principle” is a choice between two evils: the lesser evil is chosen over the other. In this specific case, we could state that the choice to sacrifice the right to personal freedom constitutes the lesser evil, in order to protect the right to health and security. For more information: Ignatieff, M., (2013), The lesser evil: Political ethics in an age of terror, Princeton: Princeton University Press; John W. Cheng, J. W., Mitomo, H., Kamplean, A., Seo, Y., (2021), Lesser evil? Public opinion on regulating fake news in Japan, South Korea, and Thailand – A three-country comparison, Telecommunications Policy, 45.
Image – The New Yoker