EU Commission to address working conditions for platform workers

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Photo by Diliff (from Wikimedia Commons). License: CC BY-SA 3.0. Original.

In the 1 December 2019 Mission Letter from European Commission President Ursula von der Leyen to European Commissioner for Jobs and Social Rights Nicolas Schmit, President von der Leyen wrote:

Dignified, transparent and predictable working conditions are essential to our economic model. I want you to closely monitor and enforce existing EU law in this area and to look at ways to improve the labour conditions of platform workers.

To our knowledge there are three major pieces of European law that relate directly to the working conditions of creators and workers on all kinds of online platforms, from microtask and survey platforms (like Mechanical Turk and Prolific), to freelance and design platforms (like Upwork and 99designs), to place-based platforms (for example, for food delivery, transportation, and care work), to content platforms/marketplaces (such as YouTube and Twitch).

These are:

  • The General Data Protection Regulation (GDPR), which entered into force in May 2018
  • Regulation 2019/1150, the so-called “Platform-to-Business” or “P2B Regulation,” which entered into force in July 2020
  • The Digital Services Act, which is still being developed

The “Transparent and Predictable Working Conditions Directive” was originally intended to help improve working conditions of platform workers, but it does not apply to self-employed workers and is therefore of limited use.

Our experience working with platform workers and platforms in the existing regulatory context — that is, in the context of the GDPR and the P2B Regulation — is that there is a variety of enforcement gaps and ambiguities in the existing laws.

For example, although the case law on the definition of “personal data” in GDPR is clear — any information that “by reason of its content, purpose or effect, is linked to a particular person,” (Judgment of the European Court of Justice in Nowak v. Data Protection Commissioner, para. 35) is that person’s personal data — some platform operators and even national data protection authorities seem not to have fully appreciated this definition, and dispute that important data such as reviews or qualifications are the personal data of workers. Therefore it will be helpful for the EU institutions to undertake a thorough review of the interpretation and enforcement of GDPR, especially the interpretation and application of the definition of the term “personal data.” If necessary, the regulator and/or the EU Data Protection Board may find it useful to issue additional Recommendations or Guidelines in order to harmonise interpretation and enforcement and thereby ensure the platform workers’ data protection rights are not violated.

With respect to the Platform-to-Business Regulation, while it seems intended to protect all self-employed platform workers, the scope of application is complex and seems to exclude some categories of platform workers who clearly face the problems the regulation was designed to address.

You can find more information about this Regulation in the context of the development of the Digital Services Act package in this Policy Brief from Aída Ponce Del Castillo at the European Trade Union Institute:

The digital services act package: Reflection on the EU Commission’s policy options

We hope that during the development of the Digital Services Act, the Commission will not only develop a useful and relevant new instrument but also take steps to clarify ambiguities and close enforcement gaps in existing legislation. Taken together, these three steps can be a strong strategy for improving working conditions for all platform workers — regardless of whether they are employees, self-employed, or members of a third category in national labour law, and regardless of where they do their work “in person” in a particular place, or remotely over the internet. These steps can lead to improvements in working conditions in practice, not only to improvements of the laws “on the books.” We are looking forward to these steps!