The General Data Protection Regulation and You

A cursory look at your email inbox this past month presents an intriguing trend. Multiple online services seem to have taken it upon themselves to notify changes to their Privacy Policies at the same time. The reason, simply, is that the European Union’s General Data Protection Regulation (GDPR) comes into force on May 25, 2018.

The GDPR marks a substantial overhaul of the existing data protection regime in the EU, as it replaces the earlier ‘Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.’ The Regulation was adopted by the European Parliament in 2016, with a period of almost two years to allow entities sufficient time to comply with their increased obligations.

The GDPR is an attempt to harmonize and strengthen data protection across Member States of the European Union. CCG has previously written about the Regulation and what it entails here. For one, the instrument is a ‘Regulation’, as opposed to a ‘Directive’. A Regulation is directly binding across all Member States in its entirety. A Directive simply sets out a goal that all EU countries must achieve, but allows them discretion as to how. Member States must enact national measures to transpose a Directive, and this can sometimes lead to a lack of uniformity across Member States.

The GDPR introduces, among other things, additional rights and protections for data subjects. This includes, for instance, the introduction of the right to data portability, and the codification of the controversial right to be forgotten. Our writing on these concepts can be found here, and here. Another noteworthy change is the substantial sanctions that can be imposed for violations. Entities that fall foul of the Regulation may have to pay fines up to 20 million Euros, or 4% of global annual turnover, whichever is higher.

The Regulation also has consequences for entities and users outside the EU. First, the Regulation has expansive territorial scope, and applies to non-EU entities if they offer goods and services to the EU, or monitor the behavior of EU citizens. The EU is also a significant digital market, which allows it to nudge other jurisdictions towards the standards it adopts. The Regulation (like the earlier Directive) restricts the transfer of personal data to entities outside the EU to cases where an adequate level of data protection can be ensured. This has resulted in many countries adopting regulation in compliance with EU standards. In addition, with the implementation of the GDPR, companies that operate in multiple jurisdictions might prefer to maintain parity between their data protection policies. For instance, Microsoft has announced that it will extend core GDPR protections to its users worldwide. As a consequence, many of the protections offered by the GDPR may in effect become available to users in other jurisdictions as well.

The implementation of the GDPR is also of particular significance to India, which is currently in the process of formulating its own data protection framework. The Regulation represents a recent attempt by a jurisdiction (that typically places a high premium on privacy) to address the harms caused by practices surrounding personal data. The lead-up to its adoption and implementation has generated much discourse on data protection and privacy. This can offer useful lessons as we debate the scope and ambit of our own data protection regulation.

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‘My Data, My Rules’ – The Right to Data Portability

Nandan Nilekani has recently made news cautioning against ‘data colonization’ by heavyweights such as Facebook and Google. He laments that data, which is otherwise a non-rival, unlimited resource, is not being shared freely, and is being put into silos. Not only does this limit its potential uses, users end up with very little control over their own data. He argues for ‘data democracy’ through a data protection law and particularly, one that gives users greater privacy, control and choice. In specific terms, Nilekani appears to be referring to the ‘right to data portability’, a recently recognized concept in the data protection lexicon.

In the course of using online services, individuals typically provide an assortment of personal data to service providers. The right to data portability allows a user to receive their data back in a format that is conducive to reuse with another service. The purpose of data portability is to promote interoperability between systems and to give greater choice and control to the user with respect to their data held by other entities. The aim is also to create a level playing field for newly established service providers that wish to take on incumbents, but are unable to do so because of the significant barriers posed by lock-in and network effects. For instance, Apple Music users could switch to a rival service without having to lose playlists, play counts, or history; or Amazon users could port purchasing history to a service that provides better recommendations; or eBay sellers to a more preferable platform without losing their reputation and ratings. Users could also port to services with more privacy friendly policies, thereby enabling an environment where services must also compete on such metrics.

The European Union’s General Data Protection Regulation (GDPR) is the first legal recognition of the right to data portability. Art. 20(1) defines the right as follows:

“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 data have been provided”

Pursuant to this right, Art. 20(2) further confers the right to directly transmit personal data from one controller to another, wherever technically feasible.

The first aspect of the right to data portability allows data subjects to receive their personal data for private use. Crucially, the data must be a in a format necessarily conducive to reuse. For instance, providing copies of emails in pdf format would not be sufficient. The second aspect is the ability to transfer data directly to another controller, without hindrance.

There are certain prerequisites for the applicability of this right:

a) it applies only to personal data that the data subject ‘provided’ to the controller. This would include data explicitly provided (such as age, or address, etc., through online forms), as well as data generated and collected by the controller on account of the usage of the service. Data derived or inferred by the controller would not be within the scope of this right.

b) the processing must be pursuant to consent or a contract. Personal data processed for a task to be performed in public interest, or in the exercise of official authority is excluded.

c) the processing must be through automated means. Data in paper files would therefore not be portable.

d) the right must not adversely affect the rights and freedoms of others.

The GDPR does not come into force till May 2018, so there remain ambiguities regarding how the right to data portability may come to be implemented. For instance, there is debate about whether ‘observed data’, such as heartbeat tracking by wearables, would be portable. Even so, the right to data portability appears to be a step towards mitigating the influence data giants currently wield.

Data Portability is premised on the principle of informational self-determination, which forms the substance of the European Data Protection framework.  This concept was famously articulated in what is known as the Census decision of the German Federal Constitutional Court in 1983. The Court ruled it to be a necessary condition for the free development of one’s personality, and also an essential element of a democratic society.  The petitioners in India’s Aadhaar-PAN case also  explicitly argued that informational self-determination was a facet of Art. 21 of the Indian Constitution.

Data portability may also be considered an evolution from previously recognized rights such as the right to access and the right to erasure of personal data, both of which are present in the current Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. TRAI’s recent consultation paper on Privacy, Security and Ownership of Data in the Telecom Sector also refers to data portability as a way to empower users. The right to data portability may be an essential aspect of a robust and modern data protection framework, and India is evidently not averse to taking cues from the EU in this regard. As we (finally) begin to formulate our own data protection law, it may serve us well to evaluate which concepts may be suitably imported.