Data Portability - A Tale of Two Concepts

Author:Ruth Janal
Position:Professor of Law at Freie Universität Berlin
Pages:59-69
SUMMARY

Art. 20 of the General Data Protection Regulation (GDPR) introduces a new concept to European data protection law - the right to data portability. The rule seeks to empower the consumer, to foster the inter-operability of data, and to prevent lock-in effects on closed platforms. Upon request, data controllers are required to provide personal data to the data subject in a structured, commonly used ... (see full summary)

 
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Data Portability - A Tale of Two Concepts
2017
59
1
Data Portability - A Tale of Two Concepts
by Ruth Janal, Professor of Law at Freie Universität Berlin. In her research, she addresses the interface between
Intellectual Property and IT law as well as European Civil Procedure and EU Consumer Law.
Contact: rjanal@zedat.fu-berlin.de. Transcript of a presentation given at the Conference on Digital Goods and
Services in Berlin on 6 October 2016.
© 2017 Ruth Janal
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Ruth Jana l, Data Portability - A Tale of Two Concepts, 8 (2017) JIPITEC 59 pa ra 1.
Keywords: Data portability; portability of content; personal data; EU Privacy Law; EU-GDPR; commonly used
data format; contract for the supply of digital content; data as a counter-performance
vided by the consumer (not only personal data) and
any other data produced or generated through the
consumer’s use of the digital content. At the same
time, the proposed provisions are stricter than Art. 20
GDPR: The data portability right under Art. 20 GDPR
may be exercised at any point in time, whereas the
right to content portability under the DCD-proposal
only arises after the contract has been terminated
following a rule in said directive. The paper highlights
other circumstances which warrant a right to con-
tent portability and laments the lack of an exception
to safeguard the rights and interest of third parties.
Three case studies are included to illustrate how the
portability rules in the GDPR and the proposed Digital
Content Directive might work in practice. The paper
closes with a synopsis showing the commonalities
and differences of Art. 20 GDPR and the portability
rules in the proposed Digital Content Directive.
Abstract: Art. 20 of the General Data Protec-
tion Regulation (GDPR) introduces a new concept to
European data protection law – the right to data por-
tability. The rule seeks to empower the consumer, to
foster the inter-operability of data, and to prevent
lock-in effects on closed platforms. Upon request,
data controllers are required to provide personal data
to the data subject in a structured, commonly used
and machine-readable format, which enables the
data subject to transfer their personal data between
controllers. However, Art. 20 GDPR leaves much
room for interpretation, in particular with respect to
the data covered, the scope of the exceptions and the
requirement of inter-operability. The proposed Direc-
tive on certain aspects concerning contracts for the
supply of digital content (DCD-proposal) takes mat-
ters a step further. Under the DCD-proposal, the sup-
plier of digital content shall provide the consumer
with technical means to retrieve all content pro-
A. Portability is en vogue
1
Portability of data and content is currently a hot
topic in EU law. A right to data portability is provided
for in Art. 20 of the new General Data Protection
Regulation (GDPR).1 The proposed Directive on certain
1 Regulation (EU) 2016/679 of the European Parliament and
of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and
on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation), OJ L 119/1
of 4.5.2016.
aspects concerning contracts for the supply of digital
content (DCD-proposal)
2
contains a similar idea with
respect to digital content. Furthermore, the European
Commission has published a Proposal for a regulation
on cross border portability of online content services.3
2 Art. 13 (2) (c) and Art. 16 (4) (b) of the Proposal for a
Directive of the European Parliament and of the Council
on certain aspects concerning contracts for the supply of
digital content, COM (2015) 634 of 9.12.2015.
3 Proposal for a Regulation of the European Parliament and
of the Council on ensuring the cross-border portability of
online content services in the internal market, COM (2015)

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