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.
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.
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.