Localization Of The Right To Data Portability

In General Data Protection Regulation from European Unions,data subjects are given a new type of right to protect data——data portability,which allows data subjects to obtain copies of personal data(right to obtain copies of personal data)or transfer personal data from the data controller to other data controllers(right to transfer personal data).The right of data portability plays an important role in improving the data subject's ability of controlling personal data,increasing data flow,and leading to free competition among data controllers.In the era of data economy,data has completed the transition from traditional information sources to asset elements,and the data economy driven by data has become a new economic growth point.For China,in order to seize the opportunities of the data economy,it is necessary to both further lift the data subject 's ability of controlling its data to strengthen personal data protection,and to increase the flow of data and cause free competition among data controllers.Due to the important reference value in data portability,it is essential for China to construct the data portability.For the time being,the construction of data transmission platforms is promoted to ensure data security and provide possibilities in the field of data technology;data protection legislation is put on the agenda,the "General Principles of Civil Law" reserves seats for "Personality Rights",and "Personal Information Protection Law(Draft)" Listed as the first sequence of legislation,it provides possibilities in the legislative space;data security cases occur frequently,data subjects' awareness of personal data protection is gradually enhanced,and citizens provide the possibility of subjective awareness.China has the feasibility of building data portability.However,in terms of localizing data portability at present,there are still many difficulties in techniques and legislation.For example,the strict implementation of data portability will lead to barriers to market access,and may even violate the data controller 's intellectual property rights or trade secrets..Considering the value and goals of data portability,when constructing a data portability right that suits China's national conditions,China should impose necessary restrictions on the right to data portability,such as narrowing the scope of the subject of obligations,clarifying the scope and details The right content can be restricted and the right to exercise boundaries can be restricted to balance the interests of data subjects,data controllers and the public.Based on the above analysis,it is recommended that the "Personal Information Protection Law" add new data portability provisions,the provisions of which are designed as follows:When the data subject agrees or the contract with the data subject and the data controller can process the data in an automatic manner,the data subject has the right to obtain a copy of the personal data collected or processed,or can directly request the data controller to transfer the personal data Transfer to another controller.(1)The subject of data portability is a natural person.The obligated subject is anetwork company with market power,and under certain conditions,it should be appropriately exempted from the data portability compliance obligations of SMEs.(2)The right to receive data and the right to transmit data are independent of each other.The data controller should verify the identity of the data subject when fulfilling his obligations,and should implement strict identity authentication procedures for the data subject to exercise the right to transmit data.(3)During the data transmission process,technical encryption should be used to protect the privacy and data security of the data subject.(4)The exercise of rights by data subjects shall be subject to legal and reasonable restrictions,and shall not damage intellectual property rights and commercial secrets.