Research On The Localization Construction Of The Right To Data Portability System

The right to data portability is a new personal data right established by the EU through Article 20 of the GDPR.Its purpose is to strengthen the control of natural persons over their data.The right subject is the physical person,the obligation subject is the data controller,and the object is personal data.The content includes the right to obtain copies and the right to transfer data.The applicable conditions are the consent of the data subject or the automatic performance based on the contract.It also involves the relationship with the right of access and the right to erasure(right to be forgotten).The relief of appeal does not affect the relief in other ways.Violation of right to data portability will also be punished.In view of the data portability,the foreign academic circles have carried on the rich in-depth research,including the introduction of data portability,the influence of the application of rights and the relationship with other rights.Domestic research is relatively insufficient,but the scope of basic coverage.There are two points of view about right to data portability: supporting the localization construction and opposing the localization construction.The two points of view are respectively demonstrated from the perspective of system design,competition law and practical conditions.The view against the construction of localization is that the system design of right to data portability is not perfect,it is not conducive to fair competition,and China does not have the conditions for the construction of localization.The viewpoint of supporting the localization construction of right to data portability thinks that the system design is reasonable,which is conducive to fair market competition,and China has the conditions for the construction of right to data portability.The negative view has obvious shortcomings,the positive view is relatively reasonable,and the positive view needs to be supported.It is feasible to build right to data portability locally.From the perspective of institutional arrangement,the existing research is developing to a deeper stage,and come up with some means to solve the relevant disputes.In addition,Australia,the USA,Brazil,the Philippines and other countries have carried out legislative confirmation on the right to data portability,which has been constantly improved in practice to solve the disputes on the system.From the perspective of competition law,there is a huge demand for the release of "lock-in effect" of Chinese people.The right to data portability can also complement the remedial measures of competition law.These make the localization of right to data portability feasible.In practice,Internet giants have launched data portability initiatives.In addition,during the outbreak of COVID-19 pneumonia,the collection and use of personal information is also promoting the research of personal data protection.From the present legislation circumstances of China,there are laws and regulations on data protection,and part of right to data portability has been established by legislation.It is feasible in practice.To construct the right to data portability system locally,we must design it in combination with the future Personal Information Protection Law.On the subject of it,the right subject is physical person,and the obligation subject comprises all data controllers.As for the object of right,it comprises the data provided by physical person,observation data and derivative data,among which the derivative data should to be carried with conditions.The scope of the right to obtain copies and the right to transfer data needs to be adjusted,and the application conditions need to focus on the analysis of its restrictions.It should not infringe on the rights and freedoms of other subjects,and should not infringe on trade secrets and intellectual property rights.Moreover,it is necessary to build a specialized personal data protection department,and to promote the comparable administrative and judicial relief procedures.Finally,the localization of right to data portability system needs the construction of supporting measures.The construction of a sequence of related criterions,including technical criterions,data format and transmission criterions,data range limit criterions,charging and compensation criterions.The coordination among departmental laws includes civil law,administrative law and even criminal law.The construction of supporting measures for the implementation of this right should be conducted first and then promoted.