A Study Of The Right To Data Portability In EU's Personal Data Protection Law

In information society,information becomes a more important resource than material and energy,exploitation and utilization of data have become the main content of national economic activities.As a new law department,personal data protection law has come into the stage of history due to the great development of information industry and spreads all around the world rapidly.The European Union has promulgated the "Data Protection Directive" in 1995,and accumulated abundant experience in more than 20 years' judicial practice.However,with the high-speed development of information technology,the diversity of infringements of personal information and the seriousness of the damage,amending the existing regulations becomes a social consensus.The European Commission officially launched a legislative reform of personal data protection law in 2012,and adopted the "General Data Protection Regulation" in 2016 formally.In addition to the formal establishment of the right to be forgotten,the right to data portability is also the focus in theory and practice.For this "unprecedented" new data protection rights,whether it would strengthen the personal data control and promote the development of the EU digital economy innovation as expected,is of great worth to discuss.In order to provide a reference to China's personal information legal research and practice,I would introduce and analyze this right systematically through four sections,including the overview of the right to data portability,the theoretical basis of the right to data portability,the structure of the right to data portability,the implications of the right to data portability.The first part is an overview of right to data portability.The introduction of right to data portability is based on a draft data protection reform submitted by the European Commission in 2012.Its nature and elements have also undergone several major changes in the four-year legislative agenda.It is finally provided in Article 20 of the General Data Protection Regulation.This right is the reaction to people's desire to enhance the power of data control in big data era,and it is also an important measure to build a digital single market in Europe.Therefore,the right to data portability can be described as both to stimulate market competition and strengthen the personal control of data.The second part is the theoretical basis of the right to data portability.Unlike the US's privacy protection model,European personal data protection law is based on the right toinformation self-determination in German law,which refers to the right of individual to decide whether or not the information about his or her to be processed or used.The right to data portability adheres to the theory of information self-determination.It allows the natural person to transfer the personal data he or she has provided to the controller from one place to another easily,and thereby to enhance the natural person's control over personal data.The third part is the structure of the right to data portability.This part is the focus of the full thesis,I would discuss this right mainly in five aspects,including the subject,object,content,application of this right and the relationship with other rights.In term of the subject of this right,the owner of right to data portability is natural person,other than the legal persons and the dead,the subject of the obligation is the data controller.Both the subjects are not limited to the EU region.In term of the object of this right,the object of this right is personal data.In the process of determining its scope,we need to consider the following four factors: any information,related to,identified or identifiable and natural persons;In term of the content of this right,it includes the right to obtain a copy and the right to transfer.In term of the application of this right,the data subject may request the application of this right on the ground of the consent of the data subject or the legal reasons such as the contract.And only in the case of technically feasible,canit be possible for the individual to request the transfer of personal data directly from one controller to another.In term of the relationship with other rights,the right to data portability and the right to be forgotten are two separate rights,and it shall not adversely affect the rights and freedoms of others.The fourth part is the implication of the right to data portability.For our country,since the telecommunications fraud,personal information trade and other illegal acts happened repeatedly,which seriously damaged the privacy and other personality interest of citizens,accelerating the enactment of personal information protection law has become the consensus of legislators and the society.As a country with rapid development of Internet industry,considering the differences in legislation background,legislation purpose,legal system and the defects of this right,we should be based on the current status of personal information protection,and sort out the existing personal information protection laws and regulations systematically.We should also learn from the systematic legislation of the developed countries at the same time in order to make a law that reflects the social desire and promote the free flow of information,rather than introducing the right to data portability of EU.