Data Portability and Interoperability: An Issue that Needs to Be Anticipated in Today's It-Driven World

Abstract

Together with another IP / IT lawyer, we tried to give tips and legal advises when contracting for IT services (e.g. for the retrieval of the data handed over to the service provider). In today’s hyper connected world, everyone with regular access to electronics and the internet hands their personal data over to third parties on a regular basis. As consumers, this is most often the case when we use services provided by companies like Google (eg. Gmail) or Apple (eg. iTunes). But we also provide our data to third parties just by browsing the internet, visiting websites or using apps. In the corporate world, we rely on various IT solutions which are increasingly cloud-based. This means that the customer data is stored on the servers of the provider (or of a subcontractor of the provider) and provided to the user on a subscription basis. As a result of this evolution, from a technical standpoint, we tend to lose control over our data or the data of our customer data. This is particularly the case when we entrust our data the data of our customer data to a third party without creating any back-up storage on personal servers or hard drives. When the customer stops being satisfied with the services or no longer needs them, the data portability (or data migration), i.e. the retrieval and transfer of their data to another IT provider, becomes of the utmost importance. In legal terms, the question is then whether the customer has a right to be provided with his, her or its data and, should that be the case, how (in which format) and at what price the data must be returned at the end of the contractual relationship. After addressing some public policy considerations relating to the right to portability, we argue that the law does not currently provide sufficient means to data portability. Therefore, individuals and companies whose data is processed by third parties would do well, in our view, to anticipate this issue and contractually regulate the migration of data at the end of their contractual relationships. In our conclusion, we summarize our position and briefly describe the potential consequences of legal uncertainty as to the migration of data.