Research On The Right To Data Portability

In the era of big data when data becomes the lifeblood of future economic development,the collection,storage and transfer of personal data are gradually normalized.Personal data has become an important resource for public management,social services and business development.How to protect personal data while realizing the free flow of data,creating a win-win situation between the protection of personal data rights and the development of digital economy is a major global problem.The emergence of data portability undoubtedly provides an idea to solve this problem.Armed with this right,data subjects can independently control the circulation of personal data among different data controllers,which has the dual effects of strengthening the self-determination right of data subjects and promoting competition in the data market.At present,the European Union,some states of the United States,India,Brazil and other countries and regions have raised data portability to a personal data right at the level of legislation,and China’s Personal Information Protection Law also has relevant norms on data portability.However,compared with foreign countries,the theoretical research on this right in China is still in its infancy,and there is still no clear legal guidance for the determination of data portability cases.This is mainly due to the unclear attribute of data portability,unclear scope of application and conflicts with other interests.From the theoretical basis of data portability,it is rooted in information self-determination theory and fair information practice theory,and belongs to the category of personality right.As for the definition of the applicable scope of data portability,we should comprehensively consider the source,the degree of development and utilization,the information of third parties and other factors,and make it clear that the application of rights is not limited by the source of personal data,the unexploited personal data and data containing third-party information with low degree of disclosure belong to the portable scope.When the application of data portability conflicts with the interests of the third party and the data controller,it can be balanced in individual cases by the principle of proportionality,but when it conflicts with the public interest,the principle of public interest priority must be established.