Ⅰ. Guaranteeing the Fundamental Human Freedoms: 3. Privacy and the Right to Self-Determination of Personal Information
selection for consumers through competition, innovation of data products and
services, more data flow and sharing and strengthening the data subjects’ right to
the self-determination of personal information as the main advantages of the right
to data portability during the right to portability workshop in Apr. 2000.
On the other hand, it must be carefully considered on whether there is any
conflict with the existing legal system related to personal information protection,
and there must be a discussion among the entire community. There is a criticism
that the discussion on introducing the right to data portability in Korea focuses on
the commercialization of personal information, not on the protection of the right
of the data subject.60) In consideration of Korea’s realities on consent to
processing personal information, it may become a mere formality or used by the
companies as justifications for using personal information,
Currently, Korean companies obtain proper consent individually from data
subjects when processing the personal information, but in reality, the consent is
induced with additional services or discounts, or consent is, in fact, coerced by not
providing services without consent, or obtaining consent in a non-voluntary or
simply as a formality. Therefore, if the data subject cannot provide consent at
his/her own free will but is coerced into requesting data transfer, sensitive
information, such as medical records, may be transferred to a third party, without
any restrictions, and may be abused in the name of economic and industrial value
creation.
Data transfer occurs with a request and consent of the data subject, but the
‘consent or request of the data subject’ should not simply be an external expression
of intent, but must follow the clear explanation on all conditions to processing the
personal information and provided voluntarily. EU GDPR provides a clear standard
that the consent on the personal information processing must be from a
60) Citizens’ Coalition for Economic Justice, Etc., “FSC must discard the Enforcement Decree on the provision of
consumer order information for the MyData project”. 2020.
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