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.
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.