How to attribute the right to data portability in Europe: A comparative analysis of legislations

Abstract

The number of online services is constantly growing, offering numerous and unprecedented advantages for consumers. Often, the access to these services requires the disclosure of personal information. This personal data is very valuable as it concedes significant advantages over competitors, allowing better answers to the customer's needs and therefore offering services of a better quality. For some services, analysing the customers' data is at the core of their business model. Furthermore, personal data has a monetary value as it enables the service providers to pursue targeted advertising. Usually, the first companies who provide a service will benefit from large volumes of data and might create market entrance barriers for new online providers, thus preventing users from the benefits of competition. Furthermore, by holding a grip on this personal data, they are making it more expensive or burdensome for the user to shift to a new service. Because of this value, online services tend to keep collected information and impede their users to reuse the personal data they have provided. This behaviour results in the creation of a lock-in effect. Upcoming awareness for this problem has led to the demand of a right to data portability. The aim of this paper is to analyse the different legislative systems that exist or have been recently created in this regard that would grant a right to data portability. Firstly, this article draws up the framework of data portability, explaining its origin, general aspects, advantages as well as its possible downfalls. Secondly, the core of the article is approached as the different ways of granting data portability are analysed. In this regard, the possible application of European Competition Law to prohibit restrictions to data portability is examined. Afterwards, an examination of the application of U.S. Antitrust Law is made to determine whether it could be a source of inspiration for European legislators. Finally, an analysis of the new General Data Protection Regulation is made with respect to the development of data portability throughout the European legislative procedure. This article makes a cross-examination of legislations, compares them with one another in order to offer a reflection on the future of portable data in Europe, and finally attempts to identify the best approach to attribute data portability.