Article 20 GDPR

← Article 20 - Right to data portability →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 20 - Right to data portability

1. The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, where:

(a) the processing is based on consent pursuant to point (a) of Article 6(1) or point (a) of Article 9(2) or on a contract pursuant to point (b) of Article 6(1); and

(b) the processing is carried out by automated means.

2. In exercising his or her right to data portability pursuant to paragraph 1, the data subject shall have the right to have the personal data transmitted directly from one controller to another, where technically feasible.

3. The exercise of the right referred to in paragraph 1 of this Article shall be without prejudice to Article 17. That right shall not apply to processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

4. The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.

Relevant Recitals

Recital 68: Right to Data Portability

To further strengthen the control over his or her own data, where the processing of personal data is carried out by automated means, the data subject should also be allowed to receive personal data concerning him or her which he or she has provided to a controller in a structured, commonly used, machine-readable and interoperable format, and to transmit it to another controller. Data controllers should be encouraged to develop interoperable formats that enable data portability. That right should apply where the data subject provided the personal data on the basis of his or her consent or the processing is necessary for the performance of a contract. It should not apply where processing is based on a legal ground other than consent or contract. By its very nature, that right should not be exercised against controllers processing personal data in the exercise of their public duties. It should therefore not apply where the processing of the personal data is necessary for compliance with a legal obligation to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of an official authority vested in the controller. The data subject's right to transmit or receive personal data concerning him or her should not create an obligation for the controllers to adopt or maintain processing systems which are technically compatible. Where, in a certain set of personal data, more than one data subject is concerned, the right to receive the personal data should be without prejudice to the rights and freedoms of other data subjects in accordance with this Regulation. Furthermore, that right should not prejudice the right of the data subject to obtain the erasure of personal data and the limitations of that right as set out in this Regulation and should, in particular, not imply the erasure of personal data concerning the data subject which have been provided by him or her for the performance of a contract to the extent that and for as long as the personal data are necessary for the performance of that contract. Where technically feasible, the data subject should have the right to have the personal data transmitted directly from one controller to another.

Recital 73: Restrictions by Member States

Restrictions concerning specific principles and the rights of information, access to and rectification or erasure of personal data, the right to data portability, the right to object, decisions based on profiling, as well as the communication of a personal data breach to a data subject and certain related obligations of the controllers may be imposed by Union or Member State law, as far as necessary and proportionate in a democratic society to safeguard public security, including the protection of human life especially in response to natural or manmade disasters, the prevention, investigation and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, or of breaches of ethics for regulated professions, other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, the keeping of public registers kept for reasons of general public interest, further processing of archived personal data to provide specific information related to the political behaviour under former totalitarian state regimes or the protection of the data subject or the rights and freedoms of others, including social protection, public health and humanitarian purposes. Those restrictions should be in accordance with the requirements set out in the Charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Recital 156: Processing of Personal Data for Archiving Purposes in the Public Interest, Scientific, Historical Research or Statistical Purposes

The processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be subject to appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation. Those safeguards should ensure that technical and organisational measures are in place in order to ensure, in particular, the principle of data minimisation. The further processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is to be carried out when the controller has assessed the feasibility to fulfil those purposes by processing data which do not permit or no longer permit the identification of data subjects, provided that appropriate safeguards exist (such as, for instance, pseudonymisation of the data). Member States should provide for appropriate safeguards for the processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. Member States should be authorised to provide, under specific conditions and subject to appropriate safeguards for data subjects, specifications and derogations with regard to the information requirements and rights to rectification, to erasure, to be forgotten, to restriction of processing, to data portability, and to object when processing personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. The conditions and safeguards in question may entail specific procedures for data subjects to exercise those rights if this is appropriate in the light of the purposes sought by the specific processing along with technical and organisational measures aimed at minimising the processing of personal data in pursuance of the proportionality and necessity principles. The processing of personal data for scientific purposes should also comply with other relevant legislation such as on clinical trials.

Commentary

Article 20 GDPR provides for the right to data portability. This right empowers data subjects to receive a copy of their personal data in a structured, commonly used, and machine-readable format. However, this right is subject to various conditions; i.e. the right is only applicable if the underlying processing is based on either the data subject's consent (Article 6(1)(a) GDPR) or on a contract (Article 6(1)(b) GDPR).

After receiving their personal data, the data subject can decide what they want to do with this data. Article 20 GDPR clarifies that the data subject is, in particular, free to transfer the data to another controller without hindrance from the original controller. The recipients of this data are not limited to providers that offer similar or comparable services, as the right to portability can be exercised with any controller data subjects choose, within the conditions specified below.

The purpose of the right to data portability is to give data subjects more control over their personal data by granting them some authority over usage of the data. The provision's objective is to increase competition by facilitating movement of data between providers and enabling data subject's to switch between service providers.

It should be recalled that Article 12 GDPR provides for formalities (e.g. rules on deadlines) applicable to all data subjects rights – including the right to data portability in Article 20 GDPR.

Article 20(1) GDPR outlines the right to data portability itself and its requirements.

Article 20(2) GDPR stipulates that the data subject can also request a direct transmission of personal data from one controller to another if this is technically feasible.

Article 20(3) GDPR provides for a clarification of the relationship with Article 17 GDPR and states that the right to data portability is not applicable in case the underlying processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

Article 20(4) GDPR clarifies that the right to data portability must not adversely affect the rights and freedoms of others.

WP29 Guidelines: for this Article see WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017 (available here).

(1) Right to data portability

Article 20(1) GDPR provides for the data subject's right to request and obtain a copy of any personal data they have provided to the controller and which is being processed based on the data subject's consent (Article 6(1)(a) or 9(2) GDPR) or contract (Article 6(1)(b) GDPR).

This information must be structured in an accessible and intelligible manner, so that both the data subject themselves and any controllers who may receive it in the future can understand and make use of it.

Right to receive

Article 20(1) GDPR gives the data subject the right to request from a controller to receive the personal data concerning them if the conditions set out in Article 20(1) GDPR are met.

"Data portability is a right of the data subject to receive a subset of the personal data processed by a data controller concerning him or her, and to store those data for further personal use. Such storage can be on a private device or on a private cloud, without necessarily transmitting the data to another data controller."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 4.

In this regard, the right to data portability is quite similar to the data subject's right to get access to a copy of their personal data undergoing processing in accordance with Article 15(3) GDPR.

For example: A controller provides a service to the data subject encompassing the processing of notes provided by the data subject. The processing activity is based on the necessity to perfom the contract with the data subject. If the data wants to receive the notes it provided to the controller, it can request access under Article 15(1) and (3) GDPR as well request to receive the data due to their right to data portability under Article 20 GDPR or both.

However, it is important to keep these two rights distinct. In particular, due to the different requirements for the exercise of those rights.

Personal data concerning him or her

A data portability request only applies to personal data concerning the data subject. Pseudonymous data is therefore also within the scope of this provision. Any data that is anonymous or not concerning the data subject are not subject to the right to data portability.

"As an example, telephone, interpersonal messaging or VoIP records may include (in the subscriber’s account history) details of third parties involved in incoming and outgoing calls. Although records will therefore contain personal data concerning multiple people, subscribers should be able to have these records provided to them in response to data portability requests, because the records are (also) concerning the data subject. However, where such records are then transmitted to a new data controller, this new data controller should not process them for any purpose which would adversely affect the rights and freedoms of the third-parties [...]."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 9.

It should be noted that personal data concerning the data subject, as well as another natural person, is in principle subject to this provision. However, the exemption in Article 20(4) GDPR could apply if the right to data portability would adversely affect the other persons rights and freedoms (see Commentary on Article 20(4) below).

Which he or she has provided to a controller

Article 20 GDPR specifies that only personal data provided by the data subject is covered by the right to data portability. This includes data that the user knowingly and actively provides, such as their name and mailing address, as well as, data that is observed from the user's activity, such as their search history or location data. In other words, the scope of this provision covers data provided by the data subject, meaning the data that was actively given to the controller (e.g. photos uploaded to the service) as well as data which was provided in the sense of knowingly generated by the data subject's activity (e.g. activity logs, food preferences); this definition also includes data that has been transferred to the controller in the context of the exercise of the right to data portability.

However, it should be noted that there is a doctrinal debate regarding whether or not "observed data" should be included within the scope of application of portability.

Personal data generated by the controller, e.g. by combining and analysing existing information, does not constitute as data provided by the data subject.

"Inferred data and derived data are created by the data controller on the basis of the data “provided by the data subject”. For example, the outcome of an assessment regarding the health of a user or the profile created in the context of risk management and financial regulations (e.g. to assign a credit score or comply with anti-money laundering rules) cannot in themselves be considered as “provided by” the data subject. Even though such data may be part of a profile kept by a data controller and are inferred or derived from the analysis of data provided by the data subject (through his actions for example), these data will typically not be considered as “provided by the data subject” and thus will not be within scope of this new right."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 10.

In a structured, commonly used and machine-readable format

According to Recital 68, the data should be available in an "interoperable format", which data controllers "should be encouraged to develop". In turn, "interoperable" refers to the ability of disparate and diverse organisations to "interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between the organisations, through the business processes they support, by means of the exchange of data between their respective ICT systems."

According to Article 20(1) GDPR the data should be provided to the data subject in a "structured, commonly used and machine-readable format". Beyond this requirement, the GDPR does not call for a specific format to be used. The terms “structured”, “commonly used” and “machine-readable” are a set of minimal requirements that should facilitate the "interoperability" of the data format provided by the data controller. Formats subject to costly licensing constraints are not considered "commonly used". The personal data provided should have a high level of abstraction from any internal or proprietary format, and metadata should be used to describe the exchanged information accurately.

Industry stakeholders and trade associations are encouraged to work together on a common set of interoperable standards and formats to deliver the requirements of the right to data portability. The Commission has published a Communication on "ICT Standardisation Priorities for the Digital Single Market", which may be used as a basis for the development of standards for the purposes of data portability.

And to transmit those data to another controller

The right to data portability, as outlined in Article 20(1) GDPR, also enables data subjects to transmit their personal data from one data controller to another without hindrance. This goes beyond the ability to simply obtain and reuse personal data and allows individuals to transfer their data to another service provider, regardless of whether it is within the same sector or not. By preventing lock-in situations, data portability empowers consumers and is expected to foster innovation and secure sharing of personal data between controllers under the control of the data subject. Additionally, it can enhance customer experiences by facilitating the controlled and limited sharing of personal data between organisations. This feature of data portability has the potential to facilitate the transfer and reuse of personal data among various services of interest to the user.

However, Article 20 GDPR provides for no obligation of the receiving controller to accept the transmission of data from the original controller.

Without hindrance

Article 20(1) stipulates that individuals have the right to transfer their data to another controller without facing any obstructions (i.e. hindrance) from the initial controller who is obliged to provide the personal data to the data subject (and in some cases directly to the other controller–see Commentary on Article 20(2) GDPR below).

"Such hindrance can be characterised as any legal, technical or financial obstacles placed by data controller in order to refrain or slow down access, transmission or reuse by the data subject or by another data controller. For example, such hindrance could be: fees asked for delivering data, lack of interoperability or access to a data format or API or the provided format, excessive delay or complexity to retrieve the full dataset, deliberate obfuscation of the dataset, or specific and undue or excessive sectorial standardization or accreditation demands."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 15 footnotes omitted.

It is recommended to offer several options to the data subject in order to exercise their right to data portability. For instance, that data subjects could be offered an opportunity to directly download the data as well as to transmit it directly to another controller; this could be implemented by making an Application Programming Interface ('API') available.

Simultaneously, the data controller should implement measures to facilitate the exercise of the right to data portability. In particular, the controller should provide for the option to exercise the right to data portability to a subset of data which the data subject actually wants to receive and/or transfer to another controller. One way to achieve this is by instituting protocols to verify that only the specific personal data that the data subject wants to transmit is actually being transmitted. This verification process could involve obtaining confirmation from the data subject either prior to transmission, or at an earlier stage such as when they provide initial consent for processing or finalise the contract.

Conditions for the right to data portability

The right to data portability only applies if:

1. the individual has either consented to the processing (Article 6(1)(a) or 9(2)(a) GDPR) or the information is processed for the execution of a contract between the data subject and controller (Article 6(1)(b) GDPR), and
2. the personal data is processed by automated means.

(i) Processing is based on either consent or contract

The right to data portability, as per Article 20(1)(a) GDPR, is only applicable when the processing of personal data by the controller is based on the data subject's consent in accordance with Article 6(1)(a) GDPR, consent to the processing of special categories of personal data in accordance with Article 9(2)(a) GDPR, or a contract in accordance with Article 6(1)(b) GDPR to which the data subject is a party. Recital 68 specifically highlights that the right to data portability should not be applicable if the processing is carried out on a legal basis other than the data subject's consent or a contract.

Consequently, data processed by the controller based on other legal bases (e.g. legitimate interests in accordance with Article 6(1)(f) GDPR) is not covered by the right to data portability under Article 20 GDPR. For processing based on Article 6(1)(e) GDPR in particular, see commentary on Article 20(3) GDPR below.

In case the processing of personal data is based on more than one legal bases, it is sufficient, that one of the applicable legal bases is the data subjects consent or the performance of a contract. In other words, the (additional) invocation of legal bases does not exclude the right to data portability.

(ii) Processing is carried out by automated means

In accordance with Article 20(1)(b) GDPR, the right to data portability only applies to processing that is conducted through automated means. Therefore, this condition is not met for non-automated processing of personal data, such as data stored on structured index cards or in non-structured physical files. This limitation clarifies that a controller does not have to convert non-machine-readable records into machine-readable data just in order to fulfill the right to data portability.

This requirement will generally be met in case of internet service providers, who are particularly in the scope of this provision since its target is inter alia to facilitate switching service providers and fostering the development of new services.

Modalities to the right to data portability

While Article 20 GDPR provides little information on modalities of the exercise of the right to data portability, such as deadlines, it should be recalled, that Article 12 GDPR provides for such rules for the exercise of data subjects rights. Therefore, the right to data portability is subject to the modalities set out in Article 12 GDPR. For example, the controller must facilitate the data subject's request, including the authentication of the data subject (Article 12(2) GDPR). Obstructive practices in this area not only unduly limit the data subject's rights, but also harm the single market and the free movement of personal data, creating real anti-competitive phenomena or "lock-in" effects.

Article 12(3) GDPR requires that the data controller provides “information on action taken” to the data subject “without undue delay” and in any event “within one month of receipt of the request”. As usual, the one month period can be extended to a maximum of three months for complex cases, provided that the data subject has been informed about the reasons for such delay within one month of the original request (see Commentary on Article 12 GDPR).

"Data controllers who refuse to answer a portability request shall, pursuant to Article 12(4), inform the data subject of “the reasons for not taking action and on the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy”, no later than one month after receiving the request".

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 14-15.

To meet user expectations, it is a good practice to define the time-frame in which a data portability request can typically be answered and communicate this to data subjects. Data controllers should consider two distinct but complementary options for providing portable data to data subjects or other controllers. The first option is a direct transmission of the complete dataset or specific parts of it. The second option is an automated tool that allows for the extraction of relevant data. For complex and large datasets, the second option may be preferred as it minimizes risks and allows for the use of data synchronization mechanisms. Making portable data available through various secure means such as messaging, SFTP servers, or secured WebAPI/WebPortal would enable data subjects to use personal data stores or other trusted third parties to hold and manage their personal data. This would also reduce privacy risks for the initial data controller and promote compliance for the new data controller.

(2) Right to have personal data directly transmitted to another controller

Article 20(2) GDPR introduces the right for data subjects to request that their personal data be transmitted directly from the first controller to a second one. Therefore, this right goes beyond the right to simply receive the data from the controller and requires the first controller to submit the data directly to another controller.

Right to have the personal data transmitted directly from one controller to another

The right to directly have their data transmitted from one controller to another, spares the data subject the burden of receiving the data and then sending it on to another controller. In particular, this provision is supposed to enable data subjects to change or use service providers–either within the same business sector as the original controller or in a different one.

The request can be fulfilled through automated transmission, such as an application programming interface (API) that allows for data transfers to other systems implementing the same API. Therefore, it suffices if the data subject is given the opportunity to initiate the transfer by selecting a field labeled e.g. "Transfer of data to another provider" choosing a provider, selecting the data to be transferred, and clicking on a corresponding field to initiate the automated transfer.

"[R]ecital 68 encourages data controllers to develop interoperable formats that enable data portability but without creating an obligation for controllers to adopt or maintain processing systems which are technically compatible. The GDPR does, however, prohibit controllers from establishing barriers to the transmission."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 5.

It should be noted that the receiving controllers can decide whether to accept and process data from a portability request.

"A 'receiving' organization becomes a new data controller regarding these personal data and must respect the principles stated in Article 5 of the GDPR. Therefore, the ”new” receiving data controller must clearly and directly state the purpose of the new processing before any request for transmission of the portable data in accordance with the transparency requirements set out in Article 14. As for any other data processing performed under its responsibility, the data controller should apply the principles laid down in Article 5, such as lawfulness, fairness and transparency, purpose limitation, data minimization, accuracy, integrity and confidentiality, storage limitation and accountability."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 7.

Where technically feasible

Article 20(2) GDPR stipulates that the original controller is only obliged to transmit the personal data subject to a data portability request directly to another controller, where this is technically feasible.

It should be noted that this feasibility safeguard clause only applies to the direct transmission from one controller to another under Article 20(2) GDPR. Therefore, it does not apply to the scenario outlined in Article 20(1) GDPR where the data subject directly requests to receive the data. Such requests shall always be fulfilled (if the respective requirements are fulfilled), regardless of technical reasons.

Recital 68 states that the controller is not required to adopt or maintain technically compatible data processing systems. Therefore, the technical feasibility of direct data transfer is primarily dependent on the existing technical capabilities of the controller. However, according to Article 12(2) GDPR, the controller must facilitate the exercise of data subject rights, including the right to data portability. As such, the data subject may request reasonable cooperation from the controller, such as adapting data transmission formats, to carry out the intended portability.

"Data controllers are expected to transmit personal data in an interoperable format, although this does not place obligations on other data controllers to support these formats. Direct transmission from one data controller to another could therefore occur when communication between two systems is possible, in a secured way, and when the receiving system is technically in a position to receive the incoming data. If technical impediments prohibit direct transmission, the data controller shall explain those impediments to the data subjects, as his decision will otherwise be similar in its effect to a refusal to take action on a data subject’s request (Article 12(4))."

WP29, ‘Guidelines on the right to data portability’, 16/EN WP 242 rev.01, 5 April 2017, p. 16

In case the direct transmission to another controller is deemed not feasible by the initial controller, the controller has to explain the data subjects why this is the case.

(3) Other Conditions

Without prejudice to Article 17 GDPR

The first sentence of Article 20(3) GDPR clarifies that the exercise of the right to data portability is without prejudice to Article 17 GDPR. In particular, this means that the exercise of the right to data portability, and transmission of the data from one controller to another controller, does not automatically trigger the obligation of the first controller to delete the transmitted data. Rather, the ground for deletion are regulated in Article 17 GDPR.

However, if one of the grounds for deletion in Article 17 GDPR applies, the data subject can request the deletion of the affected data and the controller cannot deny such request due to a potential obligation to fulfill a data portability request.

"When an individual exercises his or her right to data portability he or she does so without prejudice to any other right (as is the case with any other rights in the GDPR). A data subject can continue to use and benefit from the data controller’s service even after a data portability operation. Data portability does not automatically trigger the erasure of the data from the systems of the data controller, and does not affect the original retention period applying to the data which have been transmitted"

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 7 footnotes omitted.

Processing for the public interest and exercise of official authority

The second sentence excludes that the right to data portability apply if the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. This exception corresponds to processing activities based on the legal basis of Article 6(1)(e) GDPR. In such cases, the controller invoking this legal basis for the processing is not required to comply with a request for data portability.

This provision seems rather redundant since Article 20(1) GDPR requires that the processing is based on the data subject's consent (Article 6(1)(a) GDPR) or on a contract (Article 6(1)(b) GDPR) in order for the right to data portability to apply.

(4) Rights and Freedoms of Third Parties

No adverse affect to rights and freedoms of others

In accordance with Article 20(4) GDPR, the right to data portability must not adversely affect the rights and freedoms of others. Others could be another natural person or a legal entity. While this provision refers to the right to data portability in Article 20(1) GDPR, it should also be applied to direct transmissions under Article 20(2) GDPR.

Rights and freedoms of others can generally be adversely effected in two ways. First, the personal data could also concern other data subjects besides the data subject exercising their right to data portability. Such an adverse effect for the other data subject could occur if the recipient of the data uses the information for other incompatible purposes.

However, the fact that the personal data concerns other data subjects as well does not always mean that the right to data portability would lead to an adverse effect for the other data subject. In particular, providing the information to the data subject making the request can hardly have an adverse effect on other data subjects since the data subject itself provided the information to a controller in the first place. Therefore, an adverse effect will generally only be possible in case the other data subject's personal data is transferred to another controller.

"For example, a webmail service may allow the creation of a directory of a data subject’s contacts, friends, relatives, family and broader environment. Since these data relate to (and are created by) the identifiable individual that wishes to exercise his right to data portability, data controllers should transmit the entire directory of incoming and outgoing e-mails to that data subject.

Similarly, a data subject’s bank account can contain personal data relating to the transactions not just of the account holder but also those of other individuals (e.g., if they have transferred money to the account holder). The rights and freedoms of those third parties are unlikely to be adversely affected by the transmission of the bank account information to the account holder once a portability request is made—provided that in both examples the data are used for the same purpose (i.e., a contact address only used by the data subject or a history of the data subject’s bank account."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 11.

It should be noted that a (new) controller receiving the information from the data subject (or directly from the original controller) also has to comply with the GDPR; in particular the receiving controller needs a valid legal basis for the processing of the personal data.

Second, the affected data could cover intellectual property or trade secrets. Since the data was provided to the controller by the data subject, is can be considered rather unlikely that the data itself constitute a trade secret. But it might be the case that the particular structure of the information constitute a trade secret. Controllers cannot refuse to transfer data based solely on the possibility of such legally protected interests being infringed; instead, they must seek ways to transfer the data in a manner that avoids the disclosure of legally protected secrets.

"A potential business risk cannot, however, in and of itself serve as the basis for a refusal to answer the portability request and data controllers can transmit the personal data provided by data subjects in a form that does not release information covered by trade secrets or intellectual property rights."

WP29, Guidelines on the right to data portability under Regulation 2016/679, WP242 rev.01, 5. April 2017, p. 12.

Due to the similar wording and purpose of the provisions, see also Commentary on Article 15(4) GDPR.

Other exemptions

It should be recalled that Article 12(5) GDPR provides for circumstances in which a controller can refuse to act on a request (i.e. in case a request is manifestly unfounded or excessive).

Article 23 GDPR provides for the option to impose restrictions on the right to data portability under Article 20 GDPR (see commentary on Articles 12 - 15 GDPR).

Relevance of other EU legislation

It is important to refer to the interplay of the right to data portability with the proposed or adopted legislation under the umbrella of the EU digital strategy.

The Digital Markets Act (DMA) imposes a new obligation on "gatekeepers" that enhances the right to data portability. According to Article 6(9) DMA, gatekeepers shall provide end users and third parties authorised by an end user with effective portability of data provided by the end user or generated through their activity on the gatekeeper’s core platform services, including by the provision of continuous and real-time access to such data. Recital 59 DMA clarifies that this obligation on the gatekeeper complements the right to data portability under the GDPR.

Further, the Data Act is supposed to help users of connected devices to unlock access to data generated by them and reinforces the right to data portability by creating an obligation on "data holders" to make available the data generated by such devices (Article 5 Data Act). This obligation is supposed to empower a user (e.g. a data subject) to request the porting of personal and non-personal data from their Internet of Things devices (IoT) to a third party "without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge to the user, in a comprehensive, structured, commonly used and machine-readable format and, where relevant and technically feasible, continuously and in real-time". The scope of the data to be transmitted is not limited by the legal basis under which the data is processed by the data holder (e.g. controller) and therefore has the potential to unlock the portability of more data. Article 5 Data Act applies from 12 September 2025.

Decisions

→ You can find all related decisions in Category:Article 20 GDPR