Article 20 GDPR

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Article 20 - Right to data portability
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]

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[edit | edit source]

Recital 68: Data Portability - Article 20

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.

Commentary[edit | edit source]

The purpose of the right to data portability is to give data subjects more control over their personal data by granting a certain type of 'ownership'. The goal is to increase competition on the market allowing for a free movement of data between providers. It seems very relevant especially in such 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) by empowering users to receive a copy of their data in a structured, commonly used, and machine-readable format. Users can decide what they want to do with such data and either store it on their computer, send it to another controller, or send it to another third party. The right to portability is not limited to the providers that offer similar or comparable services - it can be exercised with any controllers a data subject chooses under the conditions specified below.

Responsibilities of controllers

Data controllers which address portability requests ("sending controllers") act on behalf of a data subject and are responsible to:

  • provide prior information about the existence of such a right (eg in the privacy notice) and clearly explain the difference between the right of access and the right to data portability;
  • process the request without undue delay, within 1 month (up to 3 months);
  • carry out authentication;
  • set safeguards to ensure they genuinely act on the data subject’s behalf (eg ensure that they transmit the exact type of personal data that the data subject wants to transmit);
  • in light of the principles set forth in Article 5(1) - ensure that the data transmitted is accurate and up to date;
  • take all the security measures for transmissions.

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."[1]

Data controllers which 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[2];
  • 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 is 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.

(1) The right to receive and transmit personal data[edit | edit source]

The data subject can ask to transmit the data as long as the data controller processes it. This is to say that a controller cannot refuse a portability request only because the retention period is ending soon.

Material scope

The data subject may request the transmission of data that concerns him or her (ie not anonymous data) and that he or she provided to the controller. The data "provided" is the data that was actively given to the controller (eg photos uploaded to the service) or such which was "observed" by a controller (eg activity logs, food preferences etc).

The personal data which was transferred from one controller to another in the context of the exercise of the right to data portability should be considered as having been provided by the data subject.[3]

(a) Legal basis for processing[edit | edit source]

The categories of data that can be requested are those processed either for the performance of a contract (Article 6(1)(b)) or to which processing a data subject gave his or her consent (Article 6(1)(a)). However, according to the Article 29 Working Party, it is a good practice to address portability requests also in such cases that do not explicitly provide for a general right to data portability, ie when processing is based on the legitimate interests or for the performance of a task carried out in the public interest.[4]

(b) Processing by automated means[edit | edit source]

Another condition is that the personal data is processed automatically, therefore the data which is available eg only on paper and which is processed manually falls out of the data portability scope.

(2) The right to transmit personal data directly to another controller[edit | edit source]

The data subject can also ask the controller to send his or her personal data directly to another controller, if this is technically feasible. Controllers are therefore encouraged to use interoperable formats in order to facilitate such an exchange of personal data between each other. Companies may create sector-specific interoperable formats within an industry to allow for easier transmissions of personal data.

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.

(3) The right to erasure[edit | edit source]

The exercise of the right to data portability is without prejudice to any other rights under the GDPR. Thus, if the data subject wants to delete his or her data from the controller's system (exercise the “right to be forgotten” under Article 17), the controller cannot justify its denial to erase such data by the data portability request.

(4) The rights of third parties[edit | edit source]

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."[5]

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[edit | edit source]

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

References[edit | edit source]

  1. Article 29 Working Party “Guidelines on the Right to Data Portability”, WP242 rev.01, p. 6.
  2. Article 29 Working Party “Guidelines on the Right to Data Portability”, WP242 rev.01, p. 7.
  3. Herbst in: Kühling/Buchner, DS-GVO, BDSG, 2nd ed., Article 20, para 11.
  4. Article 29 Working Party “Guidelines on the Right to Data Portability”, WP242 rev.01, p. 8.
  5. Article 29 Working Party “Guidelines on the Right to Data Portability”, WP242 rev.01, p. 11.