Research On The Protection Of Data Portability In Competition Law

In the era of digital economy,personal data as an important part of data has become a key production factor for economic development.The EU has taken the lead in making a legislative breakthrough in the field of personal data protection by creating the right to data portability,with the intention of removing obstacles to the flow of personal data in the EU and revitalizing the European Internet economy.China has introduced the right to data portability in the "Personal Information Protection Law",which will have a significant impact on the protection of personal data rights and the development of digital market economy in China,and it is necessary to protect it at the level of competition law,and China’s competition law policy should be transformed around the protection of the right to data portability in line with the development of the digital era.Based on this,in addition to the introduction,this paper is divided into four parts: The first part is an overview of data portability competition law protection.Firstly,the basic theory of data portability such as the concept,legal relationship and theoretical foundation is introduced.Next,the necessity of protecting the right to data portability from the perspective of competition law is analyzed.The right to data portability,as a personal data right,has obvious competition law benefits,and its protection exists at the intersection of competition law and data protection law.The right to data portability encourages the circulation of personal data while promoting consumer welfare,thus stimulating innovation of operators,lowering barriers to market entry,and ensuring effective competition in the data factor market.The second part is about the practice of data portability protection in foreign countries and the inspiration for China.The typical cases and legislative design of data portability in the EU and the US are introduced respectively,and the implications for China are drawn.China can learn from overseas experience and consider data portability in antitrust and merger reviews of data-driven operators,and use the essential facilities doctrine as an analytical tool to determine cases of refusal of data transactions,so as to protect users’ right to data portability.In addition,we can also draw on the experience of Europe and the United States in terms of data governance legislation,with a view to forming a more comprehensive data portability protection system in the future.The third part is the current situation and problems of data portability competition law protection in China.At present,China pays more attention to the protection of the commercial data rights of enterprises in judicial practice,ignoring the personal data rights of users,and the incompleteness of the relevant system makes the courts often apply only general provisions in data element market competition cases.There are still many problems in the protection of data portability,specifically the imperfect criteria for identifying data market abuse,and the outdated review criteria for data-driven operator concentration.The fourth part is a proposal to improve the protection of data portability law in China.In view of the existing problems,China’s competition law must be specifically designed to protect the right to data portability,fully consider user authorization and consumer welfare in the trial of data competition cases,regulate the behavior of data controllers that hinder data access and circulation and restrict users’ data rights,impose data portability obligations on enterprises through competition law remedies,and comprehensively use competition law and data protection law to safeguard the right to data portability.