The European Health Data Space: An expanded right to data portability?

Abstract

The European Commission recently released its proposal for a Regulation giving rise to a European Health Data Space (EHDS), as the first domain-specific common European data space under the European Union's data strategy. The proposed EHDS aims to improve access to and control by individuals of their personal electronic health data in primary use and increase data availability for secondary use purposes. This article is primarily concerned with the ambition to enhance the right of natural persons to data portability and promote interoperability in the health sector. This article seeks to delineate to what extent they represent a new and expanded right alongside the right to data portability provided in the General Data Protection Regulation (GDPR). In comparing this new expanded right to the original right outlined in Article 20 of the GDPR, the authors argue that Article 3(8) of the EHDS proposal represents an important expansion with the potential to allow individuals more possibility to control and mobilise their electronic health data, especially those elements located within Electronic Health Records (EHRs). This will also be facilitated by the strengthened interoperability requirements foreseen by the EHDS proposal. However, this paper also identifies several limitations and inconsistencies in the new data portability right which could potentially hinder its functioning. This notably includes the proposal's failure to take into account the need for data portability for secondary use purposes, and the unclear relationship of Article 3(8) of the proposal with Article 9 of the GDPR. It is recommended that these points should be considered carefully in future versions of the EHDS proposal.