Putting the Right to Data Portability into a Competition Law Perspective

Law: The Journal of the Higher School of Economics, Annual Review, 2013, pp. 53-63

10 Pages Posted: 28 Mar 2014

See all articles by Inge Graef

Inge Graef

Tilburg Law School; Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT); Tilburg Law and Economics Center (TILEC)

Jeroen Verschakelen

KU Leuven - Centre for IT & IP Law (CiTiP)

Peggy Valcke

KU Leuven - Centre for IT & IP Law (CiTiP); European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); Bocconi University Milan

Date Written: 2013

Abstract

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 March 2014, the European Parliament adopted amendments to the proposal that was introduced by the European Commission in January 2012. Although some of these amendments also target 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. Data protection regulation applies generally, while competition enforcement is more flexible and only takes 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.

Keywords: Data portability, data protection law, competition law, online services

Suggested Citation

Graef, Inge and Verschakelen, Jeroen and Valcke, Peggy, Putting the Right to Data Portability into a Competition Law Perspective (2013). Law: The Journal of the Higher School of Economics, Annual Review, 2013, pp. 53-63, Available at SSRN: https://ssrn.com/abstract=2416537

Inge Graef (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037
Netherlands

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Jeroen Verschakelen

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6
Leuven (Belgium), 3000
Belgium

Peggy Valcke

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6 box 3443
Leuven, 3000
Belgium

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

Bocconi University Milan ( email )

via Roentgen 1
Milan, Milan 20100
Italy

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