‘디지털 강제’에 대한 자유로서 ‘아날로그 대안에 대한 권리’에 관한 독일에서의 최근 논의와 시사점

More and more areas of life are being digitized. This means that people who are unable or unwilling to participate are excluded. This Paper examines in particular from a constitutional law perspective whether and under what conditions ‘digital coercion’ is justified, when ‘analog alternatives’ should be provided and when they are not. Politicians and businesses agree: digitization must be driven forward in Germany. Without having achieved the goal of nationwide internet coverage, ‘digital only’ is now being propagated. In administration, but even more so in the area of privatized services of general interest, such as Deutsche Bahn or the postal service, digitalization is becoming a ‘digital coercion’ in the absence of analogue alternatives. Digitalization often promotes citizen and customer friendliness, economic efficiency and service quality. However, digital only excludes people who cannot use the services or do not want to for legitimate reasons. Many people cannot afford the necessary digital infrastructure with end devices and network access; physical limitations often make it impossible to use them; some people lack the necessary media skills, for example because they are older. Others avoid services for justified fear of inappropriate data use and misuse. Do people therefore have a ‘right to an analogous alternative’? Such a right can be derived from fundamental rights. These primarily address the public sector. However, they also bind private companies via a ‘third-party effect’ if they have the unilateral power and opportunity to impose their contractual conditions on inferior contractual partners, especially if people are dependent on their services in order to satisfy their basic social, economic, communicative and cultural needs. People have the right not to be degraded to mere objects. General freedom of action gives them the power to determine the means of exercising their rights to freedom themselves. The right to use the Internet for this purpose also implies a right to refrain from doing so. This is because every fundamental right has both a positive and a negative component. Digital-only offers may constitute a violation of the principle of equality and the prohibition of discrimination. No one may be discriminated against because of their wealth, disability or age. Indirectly, such discrimination is commonplace in the digital world. The BVerfG has established a fundamental right to the guarantee of a humane subsistence level. However, the social assistance granted is not sufficient to cover the costs incurred in the event of digital coercion. There is often a lack of accessibility in digital services. Freedom of expression and information, the principle of the rule of law and the need for democratic transparency and controllability also argue against a digital only in many cases. Constitutional law therefore already establishes claims to analogous alternatives, but in legal practice these are recognized less and less - a reason to explicitly enshrine such claims in law. The discussion about the ‘right to analogous participation’ has begun. It is important to discuss the individual relevant issues in concrete terms. Digital coercion prevails in a large number of life situations. People who cannot and do not want to use digital media are discriminated against. This can be contained by simple legal regulation. In view of the ever-increasing digitalization of all areas of social life and the associated increase in discrimination through digital coercion, it is also necessary to establish a comprehensive and overarching the right to analogue participation in normative terms.