The Position and Application of the Right to Personal Data Portability in the Competition Law of Digital Platforms

Introduction
When users of digital platforms intend to migrate to a new platform, they face costs during migration or "multi-homing." The lack of access for the migrating user to their own personal data on the new platform is one of the most prominent of these costs. Since this switching cost makes it difficult for nascent platforms to compete with incumbent platforms, in recent years a right known as the "right to personal data portability" has attracted the attention of competition policymakers. In Iran, this right was also recognized in 2020 (1399 AH) in the document "Policies and Macro Requirements for Supporting Competition and Combating Monopoly of Virtual Space Platforms." The main question of the present article is whether the right to personal data portability can in practice be a tool to increase inter-platform competition? And if the answer is negative, what solutions can be proposed to the legislator to increase the efficiency of the right to data portability in the competition law of virtual space platforms?.




The Position and Application of the Right to Personal Data …




Method
This article attempts to answer the above question using a descriptive-analytical method.
 
Findings
The results of the study show that currently the personal data portability regime in Iranian platform markets faces three obstacles to increasing competition: The first obstacle is the legal limitation of platforms and migrating users in the full implementation of the right to personal data portability due to the conflict of this right with the privacy of third-party users of the platform. For example, on the "Instagram" platform, the information that matters to the migrating user is not only their own personal data but also includes data created by the user's friends and followers who are somehow connected to them (such as their likes and comments). In another example, sellers active on the "Digikala" platform, when migrating to another platform, intend both to transfer their own data, such as product images and descriptions, and also consider transferring their customers' data, such as feedback and positive reviews recorded about the products. This is while the transfer of personal data belonging to third parties (in the above hypotheses, the user's friends on the Instagram platform and the seller's customers on the Digikala platform) faces limitations under personal data protection laws; a limitation whose legal source is Article 59 of the Electronic Commerce Law and clauses 1-1 and 2-1 of the "Directive on Improving the Protection of Privacy of Users of Virtual Space Platforms."
The second obstacle is the absolute nature of clause 3 of Article 4 of the document "Policies and Macro Requirements for Supporting Competition and Combating Monopoly of Virtual Space Platforms," which obliges all digital platforms active in Iran to establish a data portability process. This imposes unnecessary costs on nascent platforms lacking market power and can itself become a barrier to entry into the platform market. The third and final obstacle is the possibility of providing for copyright or contractual rights for the platform owner over users' data. If provided for in the platform's terms of use, this can condition and defer the transfer of migrating users' data upon the consent of the platform in whose favor the condition is made.
 
Conclusion
In order to increase the efficiency of the right to personal data portability in the competition law of digital platforms, suggestions have been presented in this article to the Iranian competition legislator: First, newly established and nascent platforms should be exempt from implementing the personal data portability regime at the beginning of their operation; but after two years of operation or until the platform reaches a dominant economic position according to the determination of the Competition Council (whichever of the two deadlines occurs earlier), the platform owner should be obliged to implement data portability tools for users. Second, regarding platforms that are subject to the obligation of data portability, an obligation should be created to provide a transparent and easy process in the platform's user interface for users to declare their consent to the transfer of their data by their audience; in such a way that the platform user can allow their audience (followers or connections) to transfer personal data related to the audience (but created by the user) to other platforms and also have access to that data on competing platforms. Third, the legislator should deem agreements between platforms and users regarding ownership or the exclusive right to exploit data belonging to the platform owner as ineffective and unenforceable with respect to the potential suspension of the right to personal data portability. Nevertheless, it should not be forgotten that the aforementioned agreements should still be enforceable and binding in other respects, especially against data-scraping persons, in order to prevent instances of unfair competition among platform owners.