Putting the Right to Data Portability into a Competition Law Perspective

Abstract

Graef Inge - PhD fellow Research Foundation — Flanders (FWO), Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium.Verschakelen Jeroen - Legal Researcher, Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium.Valcke Peggy - Research professor’s Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium; Visiting Professor University of Tilburg; lecturer media and communications law University of Brussels (HU Brussel’s) and Florence School of Regulation (European University Institute). This article explores the scope of application and possible implementation of the right to data portability as introduced in the proposal for a General Data Protection Regulation. In October 2013, the European Parliament adopted amendments to the proposal that originally had been submitted by the European Commission in January 2012. Although some of these amendments also targeted the right to data portability, the principles underlying this right as proposed by the Commission are still intact. The right to data portability consists of two aspects: the right to obtain a copy of personal data that has been provided by the data subject and the right to transfer this data directly from controller to controller. Attention is particularly paid to the second aspect that entitles data subjects to ask their controller to transmit their data directly to another controller without any additional action on their part. Furthermore, the potential effect of the right to data portability is analyzed from a competition law perspective. In this regard, attention is paid to the question whether the proposed right could remedy user lock-in in online services, such as social networks.A comparison will be made between competition enforcement and the imposition of regulation for facilitating data portability. Regulation applies generally, while competition enforcement is more flexible and may only take place in specific situations. Depending on the factual circumstances, restrictions on data portability may qualify as abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union.

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