[The Editors' Verdict] COVID-19 and the Restriction of Fundamental Rights

Now, with the second social distancing campaign underway, the novel coronavirus disease (COVID-19) situation appears to have somewhat entered a stabilization phase, as the government’s goal of fewer than 50 new daily confirmed cases on average is being achieved. However, infections are still occurring mainly among foreign entrants, making it difficult to lower vigilance.

To respond to COVID-19, various countries around the world, including Korea, have implemented diverse measures, with the core being lockdowns and isolation to prevent the spread of infection. China, Taiwan, Hong Kong, and Vietnam have enforced policies that block the inflow of outsiders and the outflow of insiders from epidemic areas. Europe has similarly issued orders prohibiting unnecessary movement except for limited travel to purchase food or medicine. In effect, they are preventing the spread of infection through lockdowns comparable to wartime measures. Such lockdowns inevitably restrict basic human rights such as freedom of movement and travel. Measures like detention, which isolate criminals from society for a certain period, are being implemented.

However, unlike other countries, Korea has implemented selective and pinpoint quarantine measures without lockdowns or isolation, by identifying infected individuals and their contacts and isolating them, or by locking down only the places and industries where infections have actually occurred. Even with the widespread infections in Daegu and Gyeongbuk centered on the Shincheonji Church of Jesus (Shincheonji) followers, Korea did not adopt the lockdown approach chosen by China and Europe. This can be seen as achieving a balance and harmony between quarantine and individual basic rights, but there is some regret in that if a strong lockdown policy like Taiwan’s early in the COVID-19 outbreak had been implemented, the more than 200 deaths might have been prevented.

In any case, it is positive that Korea, which has not yet been fully recognized as an advanced democracy by the United States and Europe, is achieving considerable success in quarantine while respecting the basic rights of its citizens to the greatest extent possible. Moreover, it is encouraging that not only the government authorities but also the public have a high awareness of basic rights. For example, when concerns about privacy infringement arose regarding the disclosure of confirmed patients’ movement paths, the government recommended a principle of disclosing spatial and temporal information within the possible range, excluding information that could identify individuals. This is seen as an effort to balance infectious disease prevention and personal information protection.

Meanwhile, the government decided to introduce wristbands, citing the need to strengthen management as overseas arrivals increase and unauthorized departures and re-entries during self-quarantine occur. These wristbands automatically notify officials if the self-quarantined person’s mobile phone moves beyond a certain distance or if the wristband is damaged or cut. However, the government recognized that mandatory wearing of wristbands lacks sufficient legal grounds and raises human rights issues, so it decided to implement them only with the individual’s consent.

Self-quarantine measures are compulsory dispositions under the Infectious Disease Prevention and Control Act, which isolate or hospitalize people who have been in contact with infectious disease patients and are at risk of infection or transmission, or suspected cases, in appropriate places for a certain period. Considering the rapid transmission of infectious diseases, post-facto penalties such as fines imposed after violations that have already led to infections of others are meaningless. Therefore, to induce faithful compliance with self-quarantine orders and promptly prevent the spread of risks caused by quarantine breaches, procedures to secure enforcement of the disposition, such as wristbands, may be necessary.

In principle, legal grounds are required to restrict basic rights for public interest reasons. Also, the private interest of respecting individual privacy is as important as the public interest of protecting the lives of many citizens through quarantine. Although legislative supplementation is needed in the future, if it is an urgent matter related to the fate of the entire community, a substantive review rather than a formal logic related to basic rights restrictions seems necessary.

Lee Sung-yeop, Professor, Graduate School of Technology Management, Korea University / Deputy Director, Cyber Law Center

This content was produced with the assistance of AI translation services.