A South African public law perspective on digitalisation in the health sector

Digital Pathways publication
Firoz Cachalia
Jonathan Klaaren
Abstract

The impact of digitalisation on society has posed and re-posed a number of significant questions: What should be the limits of information stored by the government of its citizens? How can that information be appropriately shared with persons and firms in the private sector in order to unlock its economic value? Why does it seem as if the technology changes faster than the law can respond? What rights does an individual have in the information about that individual?

The authors explored some of the questions posed by digitalisation in an accompanying working paper focused on constitutional theory: 'Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa'. In that paper, they asked what legal resources are available in the South African legal system to respond to the risk and benefits posed by digitalisation. They argued that this question would be best answered by developing what they have termed a 'South African public law perspective'. In the authors' view, while any particular legal system may often lag behind, the law constitutes an adaptive resource that can and should respond to disruptive technological change by re-examining existing concepts and creating new, more adequate conceptions. The authors' public law perspective reframes privacy law as both a private and a public good essential to the functioning of a constitutional democracy in the era of digitalisation.