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National health platform: The state as a provider of information

Transcript

Intro

If we view the national health platform as a central node of a network that involves government actors, it must adhere to the legal criteria governing state bodies.

What constitutes government public service messaging, and how does it relate to the concept of a national health platform?

Essentially any form of activity by which the state communicates information to the public can be regarded as a form of government public service messaging. This can include, for example, providing informing about specific topics such as certain medical conditions or endorsing behaviors like walking 10,000 steps a day. It also involves issuing warnings about certain products, like the use of specific medical devices. And it doesn’t necessarily matter which government agency is the source of this information. It could come from a federal ministry, a state or regional parliament, or a local government agency.

Why is government public service messaging subject to specific legal requirements?

The state’s activity in terms of providing information to the public is subject to distinct legal requirements because government entities typically have access to significantly different kinds of resources for their informational activities compared to privately owned businesses. Government agencies usually attract a great deal of public attention when issuing information and enjoy a certain degree of authority and trust, particularly among patients.

This means that when, for instance, a federal ministry issues a warning about the use of a specific medical device, this effectively functions as a ban on that product. Citizens are much less likely to purchase the device if the government has officially cautioned against it. In practical terms, government public service messaging can significantly influence market dynamics. It can, for example, impact other providers of digital healthcare services’ fundamental right to occupational freedom.

What guidance can be extrapolated from this for the governance of a national platform?

If government actors are to participate in the national health platform, the platform will need to comply with the typically stringent legal requirements that are applicable to state entities. As a rule, this will involve establishing a legal framework. Even if product warnings are not the main focus of the project, the fundamental rights of providers of digital healthcare services could plausibly be affected by such an undertaking.

This suggests that the national health platform should be run by a non-governmental organization such as a civil society organization that enjoys more flexibility. And this wouldn’t need to rule out public funds as a source of financing, as public financing doesn’t necessaeily dictate that the chosen governance or ownership model be based in public law.

Disclaimer

The statements made in this interview are relevant exclusively to the German legal context. They offer a framework for guidance and should not be interpreted as providing legal counsel beyond the scope of the Trusted Health Ecosystems project.

Content

Expert

While completing her doctoral studies, Prof. Dr. Laura Schulte gained experience in the field of constitutional law as a research assistant. Her doctoral thesis focused on data protection law, and she conducted further research on this subject at various institutions, including the Queen Mary School of Law in London. From 2020 to 2023, she was employed as an attorney at BRANDI Rechtsanwälte in Bielefeld, specializing in IT and data protection law. Since August 2023, she has held the position of professor of business law at the Hochschule Bielefeld.

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    National health platform: Editorial content creation

    Transcript

    Intro

    The national health platform’s purpose should be to enhance, not replace, existing information services.

    Who bears responsibility for the content on a national healthcare platform?

    When it comes to the question of who bears responsibility for the content provided on a national health platform, it comes down to the nature of the content in question. The platform operator is initially accountable for their own content. However, if the platform operator assumes responsibility for third-party content –  by evaluating it before making it public or by expressing a willingness to take on such responsibility – then the platform operator may be held accountable.

    If an entity other than the platform operator assumes responsibility for assessing content before it is published, this might require a different legal assessment. In such cases, it’s possible that the platform operator could be held liable or share the responsibility for external content. This means that the platform operator must establish a mechanism for users to report false or unlawful information.

    How should the creation of original content be assessed from a competition law perspective?

    Evaluating the creation of original content for a national health platform in terms of competition law is complex, especially when government actors are involved. In principle, government initiatives should only be introduced when a form of market failure is evident. This means either insufficient information is being communicated or information in the healthcare sector is not being adequately transparent.

    Past experience has shown that digital healthcare service providers are quite capable of meeting this demand. The national health platform’s purpose should be to enhance, not replace, existing information services. This should benefit not only users but also providers of digital information services in the health sector.

    What insights can we gain from this for the platform’s content strategy?

    When it comes to shaping the national health platform’s content strategy, it’s important to bear in mind that creating or asserting ownership of content and disseminating it can be, in terms of competition law, challenging to justify, especially when government bodies are involved in the project. In this context, it seems preferable to prioritize the distribution of third-party content, meaning content generated by civil society or private-sector organizations. The providers of such information should be given fair and transparent access to the platform.

    Disclaimer

    The statements made in this interview are relevant exclusively to the German legal context. They offer a framework for guidance and should not be interpreted as providing legal counsel beyond the scope of the Trusted Health Ecosystems project.

    Content

    Expert

    While completing her doctoral studies, Prof. Dr. Laura Schulte gained experience in the field of constitutional law as a research assistant. Her doctoral thesis focused on data protection law, and she conducted further research on this subject at various institutions, including the Queen Mary School of Law in London. From 2020 to 2023, she was employed as an attorney at BRANDI Rechtsanwälte in Bielefeld, specializing in IT and data protection law. Since August 2023, she has held the position of professor of business law at the Hochschule Bielefeld.

    Your feedback is important to us

    To contact our project team, please use our form. We look forward to your message and will get back to you as soon as possible.