Legitimacy and Constitutionality of Contact Tracing in Pandemic in the Republic of Korea
26 Pages Posted: 11 May 2020
Date Written: May 7, 2020
The Republic of Korea (hereinafter referred to “South Korea” or “Korea” interchangeably) had learned a valuable lesson from the Middle East Respiratory Syndromes (hereinafter “MERS”) outbreak in 2015. Hence, the Infectious Disease Prevention and Control Act of 2015 (hereinafter “IDPC Act of 2015”) and its pertinent ministerial ordinance newly prescribed legal basis to retrace contacts of the infected patients. It is called as “contact tracing.” During the COVID-19 pandemic, the contact tracing system has come into play well.
Even though the legitimacy of the contact tracing system is guaranteed under the IDPC Act of 2015 and of 2020, the constitutionality can be challenged because it may violate the freedom of the infected patients and their contacts to move and maintain their occupation, and their freedom of privacy. When there is a conflict between the fundamental rights, an upper-level one will take precedence over a lower-level one. When we take into account the pandemic of deadly COVID-19 virus, right to life, right of occupation and right to know information on the movement paths of the infected patients which non-infected persons have should take precedence over the right to move and the freedom of occupation and of privacy, of the infected persons and their contacts. However, in restricting the fundamental rights of the infected patients and their contacts, the proportionality test will be applied. Hence. there are certain requirements for legislation that restricts the fundamental rights of the nationals only by the public's risk to those who are in contact with an infected person or to those merely suspected of being infected. All of the following must be balanced: (i) the legitimacy of the purpose, (ii) the adequacy of the method for achieving the goal, (iii) the minimum of damage, and (iv) the balance of legal interests between the public interest to be protected by the legislation and the fundamental right to be infringed.
The provisions of the IDPC Act are intended to protect the health of the people. The contact tracing based on those provisions is effective and adequate for achieving the said objective. In addition, the public interest, i.e., national health, to be achieved through the provisions is greater than the limited private interests, i.e., freedom of privacy, of occupation, and of movement which can be enjoyed by the infected patients and their contacts. However, the state needs to explore whether the third requirement, which is minimization of harm of the infected patients and their contacts, has been met. In other words, the disclosure of personal information of the infected persons or their contact needs to be minimized while Article 37 (2) of the Korean Constitution is taken into account. The issue here is whether the limitations to the right to privacy, to move, and the right of religion, of the infected patients or their contacts must be provided by the IDPC Act. Even though the scope of disclosure of the movement paths of the infected patients and their contacts is advised by the KCDC’s guidelines, its legal bases are on, e.g., Articles 34 bis (1), 76 bis and 6 (2) of the IDPC Act. Also, the pandemic of a novel infectious diseases is not predictable, so that the scope of disclosure of the movement paths of the infected persons and their contacts can be different based on the type of a new infectious disease. In this context, even though the KCDC’s guidelines are not binding upon local governments, it is not fair to say that the scope of disclosure of the movement paths of the infected persons and their contacts is not groundless and unconstitutional. Taking into account the difficulty in delineating the effect of a new infectious disease and the necessity for expeditious countermeasure against it, the disclosure of the movement paths of the infected patients and their contacts is constitutional under the IDPC Act combined with those of Personal Information Protection Act despite the fact that the contents of the KCDC’s guidelines are not explicitly provided under the IDPC Act.
Keywords: pandemic, COVID-19, contract tracing, constitution, freedom of privacy, right to life, right to health, right to move, freedom of occupation, infectious disease, Republic of Korea, South Korea
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