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 purpose of the right to data portability is to give data subjects more control over their personal data by granting them a certain type of "ownership". Regulators’ objective was to increase competition on the market by allowing for the free movement of data between providers. Data portability is especially relevant in cases when one controller offers a higher level of protection of personal data than another within the same industry sector or across sectors.

The right to data portability complements the right of access (Article 15 GDPR) by empowering 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 to another controller, or send it 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. 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 it. Once received, the information can obviously be shared with other data controllers.

Material Scope

Data subjects may request the transmission of data that concerns them (i.e. not anonymous data) and that they provided to the controller. The data "provided" is the data that was actively given to the controller (e.g. photos uploaded to the service) or which was "observed" by a controller (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. According to certain academics, "data collected by a device such as a 'quantified self' application that tracks an individual's movements (exercise, sleep etc.) would be within the scope of the right while any insights gleaned on the basis of that information (for example, about the individual's health status or working patterns) would be excluded from the scope of the right".

Conditions to Exercise Data Portability

The right to data portability only applies if (i) the individual has either consented to the processing or if (ii) the information is processed for the execution of a contract between the data subject and controller and, in both cases, (iii) data is processed automatically. For example, data which is only available on paper and manually processed falls out of the scope data portability.

Responsibilities of Controllers

Controllers that address portability requests ("sending controllers") act on behalf of a data subject and are responsible for providing prior information about the right’s existence (e.g. in the privacy notice) and clearly explaining the difference between the right of access and the right to data portability; processing the request without undue delay, within 1 month (up to 3 months); carrying out authentication; setting safeguards to ensure they genuinely act on the data subject’s behalf (e.g. ensure that they transmit the exact type of personal data that the data subject wants to receive); in light of the principles set forth in Article 5(1) GDPR, ensuring that the data transmitted is accurate and up to date; and, taking all necessary security measures for transmissions.

Data controllers that receive portability requests ("receiving controllers") have an obligation to "clearly and directly" state the purpose of the new processing before they accept the request in accordance with the transparency requirements set out in Article 14 GDPR; process the request without undue delay, within 1 month (up to 3 months); ensure that the data they accept is relevant and not excessive for the intended data processing; delete the personal data which are not necessary to achieve the purpose of the new processing as soon as possible. The receiving controllers can decide whether to accept and process data from a portability request.

Data Format

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.

According to Recital 68, the data should be available in an "interoperable format", which data controllers "should be encouraged to develop". The WP29 defines interoperability as the "capability to communicate, execute programs, or transfer data among various functional units in a manner that requires the user to have little or no knowledge of the unique characteristics of those units".

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. 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.

Cormack expresses doubts regarding the viability of this solution, noting that many organisations will hold their data on internal databases that are securely firewalled from internet access as opposed to APis. Without standards leading to interoperability, the right to data portability may "remain more a declaration of principle than a real and effective tool for individual self-determination in the digital environment".

(2) Right to have Personal Data Directly Transmitted to Another Controller

Data subjects can also ask the controller to send their personal data directly to another controller, if this is technically feasible. The sending controllers are, however, not responsible for the processing handled by the data subject or by another company receiving personal data. "In this respect, the data controller is not responsible for compliance of the receiving data controller with data protection law, considering that it is not the sending data controller that chooses the recipient". Data portability is supposed to facilitate the reuse of personal data concerning the data subject provided that the copy of the data should be transmitted in the defined format. Controllers are therefore encouraged to use interoperable formats in order to facilitate such an exchange of personal data between each other. Companies in the same industry may create sector-specific interoperable formats to allow for easier transmissions of personal data (see above).

(3) Right to Erasure

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.

(4) Rights of Third Parties

The portability request should not include any third party data if there is a likelihood that the new processing will adversely affect the rights and freedoms of the other data subjects. "Such an adverse effect would occur, for instance, if the transmission of data from one data controller to another, would prevent third parties from exercising their rights as data subjects under the GDPR." The rights and freedoms are unlikely to be adversely affected if the receiving controller processes the data of other data subjects for the same purpose it was processed by the sending controller.

Decisions

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