Why the Right to Data Portability Likely Reduces Consumer Welfare: Antitrust and Privacy Critique

Privacy and Security, Competition Policy and Antitrust and Networks, the Internet, and Cloud Computing

Article Snapshot


Yianni Lagos and Peter Swire


Maryland Law Review, Vol. 72:2, 2013


This article analyzes the potential weaknesses of the European Union’s potential new right to data portability.

Policy Relevance

The new right, as it is currently drafted, could actually harm consumer welfare and may need substantial revisions or reform before it can actually act to protect Internet users.

Main Points

  • In 2012, the European Union created a draft regulation which would create a human right to data portability (RDP). This right would allow individuals to transfer his or her online data from one service (such as Facebook) to any other, without hindrance.
  • The concept of the RDP is appealing because it expands personal protection for consumers on the largely unregulated Internet, and would foster competition and ease of transfer between different social media sites. However, the right, as proposed by the European Union, may actually work against its own goals and reduce consumer welfare.
  • The proposal, as drafted, would require every social medial enterprise, regardless of size or market power, to create interoperability software which would allow unhindered transfer of all data pertaining to each consumer to be transferred to any other competing company. However, compatibility is often very difficult to achieve, and the high costs of designing this type of software will both be passed along to the consumer and act as a barrier preventing new entry into the social media market.
  • No jurisdiction has yet experimented with creating this right, and, as such, the possible consequences are unknown. Yet, the current draft of the RDP, included in Article 18, would apply to every Union state, creating a broad and untested right across the continent.
  • Interestingly, the specifics of the RDP are not specified in Article 18, but instead power is delegated to a Commission, which will create the system that will regulate and enforce this new right. The power granted to this Commission appears to be broad and, considering they will be drafting the foundation for a new human right, somewhat troubling.
  • As currently drafted, the RDP may actually harm consumer welfare, and may be in need of reform. However, it is unclear what changes may be feasible before the new regulation, creating this new right, becomes final.


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