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

The right to data portability empowers data subjects to receive a copy of their data in a structured, commonly used, and machine-readable format. They can then decide what they want to do with this data, and either store it on their computer, send it or have it sent to a third party. 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.

(1) Right to data portability

Data subject have the right to request and obtain a copy of any personal data they have provided to the controller and which is being processed based on consent or contract. 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.

EDPB: Take, for instance, a scenario where a data subject desires to obtain his/her present playlist or a log of listened tracks from a music streaming service. This could be for the purpose of ascertaining the number of times specific tracks were played, or for identifying which music to buy or listen to on an alternate platform. Correspondingly, the data subject may seek to retrieve his/her contact list from a webmail application, perhaps to compile a wedding list, track purchases made with various loyalty cards, or evaluate his/her carbon footprint.

Right to receive

The request for data portability does not differ much from the request for access, at least in terms of the necessary steps to carry it out. The controller must facilitate the request, including the authentication phase (Article 12(2) GDPR). Obstructive practices in this area will not only unduly limit the requester's subjective right, but also harm the single market and the free movement of personal data, creating anti-competitive phenomena or "lock-in" effects.

As for the rest, the general rules set out in Article 12 apply. Article 12(3) 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.

EDPB: To meet user expectations, it is a good practice to define the timeframe in which a data portability request can typically be answered and communicate this to data subjects. Data controllers who refuse to answer a portability request shall, pursuant to Article 12(4), inform the data subject “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.

Modalities to provide the data

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.

Personal data concerning him or her

A data portability request only applies to personal data concerning the data subject. Pseudonymous data is within the scope if the corresponding identifier is provided by the subject (as per Article 11(2) GDPR). Any data that is anonymous or not related to the data subject is not included.

EDPB: For instance, call records in a subscriber's account history may include details of third parties, but subscribers should still be able to obtain such records in response to portability requests since they are also concerning the data subject. Nevertheless, new data controllers who receive such records should not process them in any way that would adversely affect the rights and freedoms of the third parties involved.

Provided to a controller

Article 20 specifies that only personal data "provided" by the data subject is covered by the right. This includes data that the user knowingly and actively provides, such as their name and mailing address, as well as, according to the EDPB, data that is "observed" from the user's activity, such as their search history or location data.

EDPB: 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.

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. One argument in favor of a restrictive approach aims to limit the provision of data only to the types necessary for offering a comparable service. However, inferred or derived data, which is created by the data controller based on the data provided by the data subject, is not covered by the right to data portability. This is one of the most remarkable differences between portability and access under Article 15(3) GDPR.

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 on which to develop standards for the purposes of data portability.

and the right to transmit (the data to another controller)

The right to data portability, as outlined in Article 20(1), 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 organizations. 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.

Without hindrance (from the first controller)

The GDPR's Article 20(1) guarantees that individuals have the right to transfer their data to another controller without facing any obstructions from the initial controller who provided the personal data. Such impediments can be identified as any legal, technical, or financial barriers that the data controller sets up to prevent or hinder the data subject's or another data controller's access, transmission, or reuse of the data.

Examples of such impediments include charges for data delivery, a lack of interoperability or access to a data format or API, excessive delays or complexity in retrieving the complete dataset, the intentional concealment of the dataset, or sector-specific standards or accreditation demands that are undue or excessive. The WP29 recommends that data controllers offer several options to the data subject. They suggest, for instance, that data subjects should be offered an opportunity to directly download the data as well as to transmit it directly to another data controller, and that this could be implemented by making an Application Programme Interface ('API') available.

Simultaneously, the data controller must implement measures to ensure that they are truly representing the interests of the data subject. 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 finalize the contract.

Where these conditions cumulatively apply

The right to data portability only applies if (i) the individual has either consented to the processing or the information is processed for the execution of a contract between the data subject and controller and, in both cases, (ii) 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), 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), consent to the processing of special categories of personal data in accordance with Article 9(2)(a), or a contract in accordance with Article 6(1)(b) 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 obtained by the controller by processing personal data to protect its legitimate interests in accordance with Article 6(1)(f) is not covered by the right under Article 20 GDPR.

(ii) Processing is carried out by automated means

The right to data portability under Art. 20(1)(b) only applies to processing that is conducted through automated means. This condition is generally met for internet service providers, but not for non-automated processing of personal data, such as data stored on structured index cards or in non-structured files. This limitation alleviates the controller's burden of converting non-machine-readable records into machine-readable data.

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

Article 20(2) introduces the right for data subjects to request that their personal data be transmitted directly from the first controller to a second one. This request, in line with the principle of facilitation, spares the data subject the burden of receiving the data and then sending it on to the intended controller. The request can be typically fulfilled through automated transmission, such as an application programming interface (API) that allows for data transfer 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 "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.

Where technically feasible

If the provider has not established an automated data transmission, they may be required to comply with Article 20(2) to the extent that it is "technically feasible". 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.

EDPB: 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 way29, 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)).

(3) Other conditions

The first sentence of Article 20(3) GDPR clarifies that the exercise of the right to data portability does not preclude the exercise of any other rights under the GDPR. Thus, if data subjects want to delete their data from the controller's system (right to erasure under Article 17 GDPR), the controller cannot justify its denial to erase such data because of the data portability request.

The second sentence excludes that the right to data portability apply if the processing is necessary for the controller to perform a task that is in the public interest or carried out in the exercise of official authority. This exception corresponds to the legal basis of Article 6(1)(e) GDPR. In such cases, the public administration operating under public law is not required to provide data portability.

(4) Rights of third parties

In accordance with Paragraph 4, the right to data portability must not infringe upon the rights and freedoms of others, including both individuals and legal entities. When data is transferred with reference to a third party, such as transaction data from a current account agreement or data from the use of a webmail service, the rights and freedoms of others are generally not affected if the new provider uses the data solely under the control of the data subject and for the same purposes as before. However, data transmission may be restricted by trade secrets, business secrets, or copyrights, such as those pertaining to software, if there is a specific risk of harm resulting from the transmission. 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.

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 an end user and third parties authorised by an end user with effective portability of data provided by the end user or generated through their activity through use of the gatekeeper’s core platform services (CPSs), 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 proposed EU Data Act that is supposed to help users of connected devices to unlock access to data generated by them, reinforces the right to data portability by creating an obligation on "data holders" to make available the data generated by such devices (Article 5). This obligation would 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, free of charge to the user, of the same quality as is available to the data holder and, where applicable, 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. Note: at the time of writing of this Commentary, the EU Data Act proposal was still under trialogues between the EU institutions (EU Commission, EU Parliament and the Council of Ministers).

Decisions

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