Competition Policy in Transition: Exploring Data Portability’s Roles

Abstract

The paper explores data portability from an EU competition policy perspective as set against an institutional and conceptual background swept by gales of transformation. The looming competition policy reform package includes an ex ante regulatory framework aiming to impose proportionate constraints on the behavior of particularly powerful, structuring digital platforms, as well as a further competition tool possibly inspired by the UK market investigation regime. This brief contribution takes stock of data portability a decade after the Obama Administration first launched a series of so-called “My Data” portability initiatives in the US. In the EU, significant developments in this respect have been the introduction of the data portability right under the General Data Protection Regulation and, more recently the data porting framework under the Free Flow of Non-Personal Data Regulation. Specifically, the paper points out that, from a competition policy perspective, data portability can play three distinct roles, namely it can allow for switching, enable data fluidity and thereby promote competition and innovation especially in the context of digital ecosystems, as well as enhance consumer empowerment in the digital economy overall. These different roles are than analysed against the background of: (1) traditional competition law, (2) a market investigation regime and (3) an ex-ante regulatory framework targeting large online platforms with gate-keeping power.