数据可携带权的适用逻辑与完善进路

The Application Logic and Improvement Approach of Data Portability Rights

我国2021年出台的《个人信息保护法》第45条首次对个人数据可携带权作出了规定,但关于数据可携带权的权利属性、适用范围、行使条件等并未作出详尽解释,因此导致此项权利在实施过程中面临诸多困境。目前我国学术界围绕数据可携带权的概念、结构以及本土化改造等展开了诸多讨论,但并未溯及《个人信息保护法》中规定这一权利的立法根源问题。目前我国立法体系日趋完善,数据保护技术手段难题也逐渐克服,从可行性视角来看,我国具备数据可携带权的本土化条件。但是在具体适用过程中,还面临着许多障碍,需要立足这一制度,结合立法目的等对数据可携带权的基本理论、必要性、可行性、实施障碍及完善进路展开更深层次的讨论。

Article 45 of China’s Personal Information Protection Law, which was promulgated in 2021, provides for the first time the right to personal data portability. However, there is no detailed explanation of the rights attributes, scope of application, and exercise conditions of the right to data portability, which has led to many difficulties in the implementation process of this right. At present, there have been many discussions in the academic community of our country regarding the concept, structure, and localization of the right to carry data, but the legislative roots of this right stipulated in the Personal Information Protection Law have not been traced back. At present, China’s legislative system is becoming increasingly perfect, and the difficulties in data protection technology are gradually being overcome. From a feasibility perspective, China has the localization conditions for data portability. However, in the specific application process, there are still many obstacles that need to be addressed. Based on this system, it is necessary to conduct a deeper discussion on the basic theory, necessity, feasibility, implementation obstacles, and improvement paths of data portability rights in combination with legislative purposes.