KLRI : KOREA LEGISLATION RESEARCH INSTITUTE

Ⅰ. Backgrounds and Purposes

▶ Backgrounds

○ Due to the rapid development of digital technology, digitalization has been accelerating and advancing at the domestic level and the international level and this phenomenon will intensify in the future and is expected to have a greater impact on future generations.

-Access to information by information and communication technologies(ICT) in a digital society is not only an important means for future generations to enjoy the benefits of an intelligent information society, but also a prerequisite for facilitating other social and economic activities.

- In contemporary society, the digital divide goes beyond simply the inconvenience of not being able to use information and communication technology, and difficulties in connecting to and using information lead to restrictions and inequality in economic, social, and cultural activities.

○ Recently, the international community emphasizes the value that the right to access to information in the digital envrionment should be guaranteed to anyone without discrimination, and the international norms to protect this right have been discussed and adopted.

○ Thanks to its strategic and concentrated adoption and enforcement of digital laws and policies such as the Framework Act on Promotion of Informatization, Korea becomes a state with the advanced ICT but the digital divide is still serious in case of the disabled and the elderly.

▶ Purpose

○ In order to fulfill the right to access to information in the digital envrionment for the disabled and the elderly, the research foucused on the comparative legal analysis on global human rights norms and foreign laws and on their implications to Korean legislation. Furthermore, this research tries to propose the legal improvements after reviewing the current situations and problems of Korean legislation regarding the right to access to information in the digital envrionment.

▶ Methods

○ Analysis on domestic law, global norms, and US legislation related to the right to access to information in the digital envrionment

○ Review of research papers and survey reports regarding the right to access to information in the digital envrionment of the disabled and the elderly

○ Meetings and consultations with legal and technical experts, policy practitioners, researchers, and NGO experts in the field of the right to access to information in the digital envrionment

○For professional and in-depth discussions on the current status, problems, and improvement measures for realizing the right to access to information in the digital envrionment, the expert surveys and interviews were condcted as below; 

-The expert surveys and interviews were consigned to the Industry -Academic Cooperation Foundation of Ajou University (Director; Professor Kwon Geon-bo).

- The focus group interviews and surveys were conducted targeting 20 experts from various fields, including academia, state agencies, research institutes, civil society and business operators.

 

Ⅱ. Major Content 

▶ Theoritical Review on the Right to Access to Information in the Digital Envrionment

○ Although the term of the right to access to information in the digital envrionment is frequently used, it is difficult to find its legal definition but and its concept and scope in this report are as follows.

- The digital environment has been considered same as information and communication technology but recently been expanding to include advanced technologies such as AI, VR, IoT, and clouding computing technology.

- The right to access information is understood as the right to connect to and use various information and communication.

- In addition to the Article 9 on accessibility under the Convention on the Rights of Persons with Disabilities, the right to access to information in the digital envrionment is legally based on several provisions such as non-discrimination, the freedom of expression and the right to know which is stipulated under the universal human rights instruments and the Constitution of Korea.

○ The scope of the disabled and the elderly as information vulnerable groups is understood as follows.

- From the perspective of the right to access to information in the digital envrionment, it is not desirable to strictly limit the scope of the disabled and, therefore, the diabled should be regard as “persons whose daily life or social activity is substantially hampered by physical or mental disability over a long period of time” such as Article 2(1) of the Disabled Welfare Act.

- In this regard, the scope of the elderly should be also categoried as 55 years of age or older.

○ The development of information and communication technology and services not only makes people's daily lives very convenient, but has also become an important means of seeking and imparting information, communicating with people, and solving tasks necessary for our daily lives. In particular, the COVID-19 crisis spreads non-face-to-face culture, diversifying and strengthening information and communication technologies and services, and further promoting the popularization of new information and communication technologies and services.

○ Access to information and communication technologies and services implies an important meaning as a right in itself and a premise for other rights or freedoms.

○ Despite the rapid development of the information and communication technology in Korea, the digital divide is still a serious issue.

- The level of digital information capability is only 74.2% for the disabled and 53.7% for the elderly and the level of digital information application level is 81.4% for the disabled and 71.4% for the elderly, compared to the general public.

- In the case of the disabled, the main cause of the digital divide is that they are willing to use it, but they cannot use it because they do not know how to use it, or because it is difficult to use it due to their physical or mental disabilities.

- In the case of the elderly, the main causes of the digital divide are that they do not feel the need to use it, that they do not know how to use it and that it is difficult to use it.

○ Failure to guarantee access to information in a digital society is not only a serious deprivation of the right in itself, but also infringes other civil, political, social and economic freedoms and rights. In particular, realizing the right to access information is a key issue in Korea where it is expected to become a super-aged society soon.

○ Protecting the right to access to information in the digital envrionment for the disabled and the elderly means that the state should not violate or restrict the right and, furthermore, is obliged to to take appropriate legislative and administrative measures.

▶ Trends and Implications of Global Norms concerning the Right to Access to Information in the Digital Environment

○ Right to access to information in the digital environment under the UN human rights regime

- Prior to the adoption of the Convention on the Rights of Persons with Disabilities, the right to access to information in the digital environment has been discussed from the perspective of the International Bill of Human Rights.

- Freedom of expression under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights is one of the key elements in the right to access to information because freedom of expression includes freedom to impart one's opinions or information as well as freedom to seek and receive them. 

- The right to access to information for the disabled and the elderly is also closely linked to non-discrimination which is stipulated under the International Bill of Human Rights.

- Article 15 of the International Covenent on Social, Economic and Cultural Rights declares that "everyone has the right to enjoy the benefits of scientific progress and application," which implies that scientific progress and application must be accessible to everyone without discrimination.

- In particular, the Convention on the Rights of Persons with Disabilities is the first international human rights instrument to stipulate accessibility.

- The right to access to information in the digital environment which is a substantial right as well as one of the general priniciples of the Convention gurantees access to “all facilities and services open and provided to the public,” so it does not distinguish whether these facilities and services belong to public institutions or private entities.

- The States Parties should legislate to establish minimum standards for this right, gradually revise them as the related techonogies develop and user demand changes, monitor whether they are observed, and prepare and enforce sanctions for effective implementation.

- In addition, the States Parties should provide education, raise public awareness, promote technical development, and suppport use of the related products and assistive device in order to guarantee the right to access to information in the digital environmen.

○ Right to access to information in the digital environment under the EU regime

- One of the most important values under the EU regime is equality, which does not allow discrimination on the grounds of disability, etc. 

- The EU has promoted the prohibition of discrimination against the disabled as a major initiative; the EU ratificed the Convention on the Rights of Persons with Disabilities and has adopted and implemented the European strategies for the disabled, 

- The EU has enacted several laws to guarantee the right to access to information in the digital environment for the disabled and the elderly including the European Accessibility Act of 2019.

- The European Accessibility Act of 219 is important in that it presents accessibility requirements that are enforced not only in the public but also in the private sector to enhance the right to access to information in the digital environment.

- However, the European Accessibility Act of 2019 makes exceptions in case of small businesses, where strict enforcement of accessibility requirements causes fundamental alsternation of products or services, and where compliance with requirements resulrts in disproportionate burden.

- The European Accessibility Act of 2019 applies not only to products and services manufactured in the EU, but also to foreign products and services imported and distributed in the EU.

○ Right to access to information in the digital environment under the US legal regime

- The US, as the related technologies develop, has enacted various laws  from the Telecommunications for the Disabled Act of 1982 to the 21st Century Act and has continuously and gradually expanded and enhanced the protection of the right to access to information in the digital environment.

- Before the advent of the Internet, the right to access to information in the digital environment was discussed at the level of wired telephones. The legal scope has extended to computers and related devices as ICTs develope and to advanced ICTs such as mobile communications and online video streaming services after 2010.

- The US law establishes the requirements for digital accessibility as a legal binding rule and renew them regularaly, and imposes fines for violation to effective implementation. It is applied to not only the public sector but also the private sector.

- The U.S. law also recognizes exceptions to small and medium-sized companies to ease their burden and proivdes fiancial support for technolgy development and distribution of the accessibility products and assistive devices.

▶ Analysis on and Proposals for Korean Legislation regarding the Right to Access to Information in the Digital Environment

○ Current status and issues of the legal system concerned with the right to access to information in the digital environment

- There is no single specialized law on the right to access to information in the digital environment in Korea. Instead, the issues regarding this right are regulated by various laws such as the Framework Act on Intelligent Informationalizaion, the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc., the Act on Welfare of Persons with Disabilities, and the Act on the Prohibition of Discrimination against Persons with Disabilities, Remedy against Infringement of their Rights, etc..

- The laws regarding this right have their own legal purposes, scopes and characteristics, respectively and the ministries in charge are not same. 

- Such a scattered legal system makes it impossible to systematically and effectively guarantee the right to access to information in the digial envionment.

- The provisions stipulated in various laws are often same or simliar one another and most of them are vague, declarative and non-mandatory.

○ Current status and issues of the requirements for the right to access to information in the digial envionment

- According to the Framework Act on Intelligent Informatization, the requirements for the right is applied to the state, local governments, and public institutions, not to the private sector. Although the Act on the Prohibition of Discrimination against Persons with Disabilities expands its scope to the private sector, it is too limited to fully protect the right.

- Considering the characteristics of the digital society where activities in the private sector are much more than those in the public sector, non-application of the requirements to the private sector is a fatal flaws in comparision to the Convention on the Rights of Persons with Disabilities, the European Accessibility Act of 2019, and US legislation.

- The current accessibility requirements are too old and general to reflect user demand and up-to-date technical standards or trends. In addition, the requriements are not detailed to fulfill the right and there is no stakeholders' participation in discussing standards.

○ Current status and issues of support for the right to access to information in the digial envionment

- The support and promotion of technologies and products development in terms with the right to access to information in the digial envionment are mainly carried out through the Framework Act on Intelligent Informatization. The Act covers so many issues besides the right to access to information to pay full attention to the right. Moreover, the provisions regarding the right are declartive and not compulsory so they do not play an effective role for its protection.

- The support and distribution of the related products and assitive devices are provided in various laws including the Framework Act on Intelligent Informatization, the Act on Welfare of Persons with Disabilities, and the Act on the Support ror Assistive Devices for Persons with Disabilities, Senior Citizens, etc. and Promotion of Use thereof. However, these laws also covers many areas besides the right to access to information so they do not play an effective role to enhance the right to access to information. What is worse, the disabled and the elderly do not know such support due to lack of information.

- The training of professional personnel is also stipulate in the related laws but there is a same problem; their scopes are too broad to play an effective meausre for the right. 

○ Current status and issues of the capacity building for the right to access to information in the digial envionment

- There are several provisions which can be interpreted as the legal bases on the creation of a friendly environment in terms with the right to access to information for the disabled and the elderly. However, such provisions just declare abstract policy responsibility but suggest no detailed obligations.

- With regard to education, the laws such as the Framework Act on Intelligent Informatization and the Act on Welfare of Persons with Disabilities provide legal grounds but education is not systematically promoted because their enforcement ordinances and regulations do not provide any specific details.

- Although the Framework Act on Intelligent Informatization and the Act on Assistance Device ve certain promotional regulations, the need for access to digital information and policies for all classes.

- Although there are several provisions for monitoring and remedies, they are applied only to the public sector and some kinds of private entities. What is worse, the laws concerned covers so many issues to pay full attention to the protection of the right to access to information in the digital environment.

○ Proposals for legal improvements to realize the right to access to information in the digital environment

- A single law specialied in the right to access to information in the digital environment should be enacted and implemented by the Ministry of Science and ICT and the Ministry of Health and Welfare. This Act should include issues on comprehensive pans and action plans, specialized consultative council, specialized organization, regular survey, support for technolgy development, support and distribution of products and assistive device, education, training experts, etc. in terms of the right to access to information in the digital environment.

- It is necessary to understand the right to access to information in the digital environment as a substantial right under Korean legislation and to enforce its protection both in the pulic areas and in the private areas. 

- The new law should provide detailed requirements to fully protect the right. The requirements should reflect survey result and user demand to present practical and effective standards, gradually expand its application as digital technologies develop, and set exceptions so as not to impede the development of related technologies or industries.

- Legislative measures should be stipulated to effectively ensure the right to access to information in the digital environment; for example, the periodic monitoring system should be required, administrative measures such as fines are necessary for the violation, and specialized remedy process such as an ombudsman should be prepared.

- The establishment of a specailzed organization contributes to effective implementation of support of technology devleopment, distribution of assistive devices, education, awarenss raising and so on.

 

Ⅲ. Expected Effects

○ This report is used as a reference for global norms and US legislation related to the right to access to information in the digital environment.

○ This report is used as a reference for domestic legal analysis on tthe right to access to information in the digital environment.

○ This report is used as basic academic data for improving the Korean law regarding the right to access to information in the digital environment.

○ This report contributes to legal improvements by identifying global norms for guaranteeing the human rights of the disabled and the elderly in the digital age, analyzing the relevant domestic status and problems, and its implications.