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Are Youtubers employees? A lawyer’s assessment

19 August 2019

 

On August 5, the German financial newspaper “Handelsblatt” published an interview with Gerlind Wisskirchen, a labor lawyer and partner in the German law firm CMS Hasche Sigle, with the title “Labor lawyer sees hardly any chance for IG Metall lawsuit against YouTube.” In the interview, Ms Wisskirchen says that YouTube Creators, in contrast to Uber drivers, are probably not employees. Her argument is that the “activity” of the drivers on the Uber platform would make no sense without the platform itself — but that this is different on YouTube. She says:

“Uber controls the economically important aspects of the transportation services that are offered over the platform... The platform sets conditions that the drivers must fulfill in order to accept and carry out their activities. Uber rewards drivers that complete a large number of rides, and informs drivers where they can expect a large volume of [requested] rides or good prices. This makes it possible for Uber to adjust its offering to swings in demand, without imposing formal requirements on drivers. At the end of the day, Uber evaluates the quality of work performed by the drivers, which can even lead to exclusion [deactivation] from the platform, sets the price for each ride, and manages payment processing.”

We replaced “Uber” with “YouTube,” “driver” with “Creator,” and “ride” with “Video” in this text, then removed the word “transportation.” The result is quite interesting — and, despite a few awkward bits, almost 100% true:

YouTube controls the economically important aspects of the services that are offered over the platform... The platform sets conditions that the Creators must fulfill in order to accept and carry out their activities. YouTube rewards Creators that complete a large number of videos, and informs Creators where they can expect a large volume of video [viewers] or good prices. This makes it possible for YouTube to adjust its offering to swings in demand, without imposing formal requirements on Creators. At the end of the day, YouTube evaluates the quality of work performed by the Creators, which can even lead to exclusion [deactivation] from the platform, sets the price for each video, and manages payment processing.

That describes YouTube’s business model almost exactly.

So if a labor lawyer says Uber drivers are employees based on this analysis, it would of course be quite interesting to see a response to the observation that the analysis is just as applicable to YouTube.