Data portability, which may be expressed as a concrete appearance of the right to control personal data, might also be of equal importance in terms of protecting competition within competitive free market relations. Therefore, it shall evaluated that only technical requirements and competencies or rights, authorities and obligations regarding personal data or a competition law review which does not contain personal data regulations shall not be sufficient when mentioning data portability. Herein this feature, these factors shall be considered together and the concretization of personal data in terms of the sustainability of competition conditions shall be examined, especially within the concept of data portability, theoretical and practical world applications at international and national level and Turkish law information shall be included and the relationship between the data portability – inter operability and market competition circumstances, national and international competition regulations and practices shall be correlated. Also the intersection of the issue in terms of the protection of personal data and competition shall be evaluated.
data portability personal data selfcontrol technology competition
Portability of data is shaped within the framework of personal data protection legislation, but it also emerges as a significant issue in market relations within the context of the functioning of free markets according to competition rules. Indeed, while personal data and competition law principles and rules intersect in the area of data portability, the evaluations regarding the mobile number portability (MNT) mentioned in this study is one of the main samples of this. It is stated that, the transfer between registration authorities in domain name allocation, and the ability of corporate members in sahibinden.com case to transfer their data to other platforms have impacts and benefits towards consumer welfare, thus aiming to prevent exploitative behaviors. However, the issue also needs to be concurrently evaluated in terms of exclusionary conduct. In our opinion, the fundamental motivation behind data portability is not merely about consumers being able to easily transfer their data but rather an effort to reduce the differences that hinder competition among service provider market actors by facilitating interoperability in the context of working together.
Hence, although it is beginning to be integrated into personal data protection legislation and is rhetorically highlighted as an aspect of the right to control personal data, the regulations related to data portability are more likely to demonstrate their impact in ensuring competition within the free market. On the other hand, data portability also reflects as a cost increase for data controllers. That cost increase legitimized at the center of protecting personal data also forms a preference for preserving competition. This preference should be evaluated in terms of facilitating the entry of new actors into the market by ensuring data portability and enabling consumers to change their preferences between the service provider they currently use and different service providers. Therefore, when the preference is made towards preserving competition; the imposition of additional costs on data controllers in regulations and processes related to data portability is considered as a bearable cost in terms of preserving market competition in the relevant field. This simultaneously opens the way for consumer preferences and aims to ensure the entry and continuity of small actors in the market based on the preservation of competition. Indeed, a similar emphasis may be found in the decision of the Turkish Competition Authority in the nadirkitap case.
The fact that the issue emerges in a two-dimensional manner as both personal data protection and the preservation of competition poses the potential to practically reveal the intersections of these two areas, as in other regulations related to the protection of personal data. When such an intersection leads to a dispute or violation, determining the application of the norm, including criminal regulations, may bring up confusion regarding the issue of concurrency under Article 15 of the Turkish Misdemeanor Law, especially in cases involving a breach related to data portability. Although data portability seems to be a regulation and application work taking place in the field of personal data, and involves competition law in certain market areas, the ultimate result after sieving through all these aspects is that the point where the consideration of data portability in the context of competition law will reach will still be in the area of penalization. The resolution of norm conflicts will need to be in this direction in terms of criminal law by affecting comprehensive penal policies, such as the choice between multiple punishments according to market rules and determining how interventions (politically, administratively, diplomatically, legally) in market conditions will be carried out. For these reasons, the point where (personal) data portability is considered within competition law will ultimately be in the realm of penalization, and conflicts of norms will need to be resolved in this direction.
