GDPR and labor platforms Presentation for ETUI Online Discussion 15 Jul 2020 Based on the ETUI Working Paper “Using GDPR to improve legal clarity and working conditions on digital labour platforms” By Michael “Six” Silberman and Hannah Johnston
Main points – 1 of 2 • Ratings, reviews, and classifications influence worker earnings and ability to get future work on many labor platforms • However, many reviews and classification processes are inaccurate • Because many platform workers are self-employed, they have no fundamental right to minimum wage and can’t use employment law or collective bargaining to address these problems • But ratings, reviews, and classifications are probably “personal data” under GDPR
Main points – 2 of 2 • That means workers have the “GDPR rights” regarding their ratings, and could use these rights, e.g., to correct inaccurate ratings • At present there seems to be problems with interpretation and enforcement • There are also some legitimate open questions regarding application • Art. 40 GDPR provides for “Codes of Conduct” for specific sectors • An Art. 40 GDPR Code of Conduct could help address many of these problems
How can GDPR help platform workers? 1 of 3 • Help address flaws in rating systems and correct inaccurate, unfair, or otherwise inappropriate ratings • Ratings are personal data (Art. 4.1) • Right of access means workers have a right to receive a copy of their ratings (Art. 15) • Right to rectification means inaccurate ratings must be corrected (Art. 16) • If ratings are automated, Art. 22 applies (worker has right to express point of view and contest decisions)
How can GDPR help platform workers? 2 of 3 • Mechanisms to contest account suspension or closure • A worker can request all personal data that were used as a basis for a decision to suspend or close the worker’s account (Art. 15) • If this decision was based on inaccurate or incomplete personal data: Art. 16 • If, however, the platform explicitly reserves the right to suspend or close an account for any or no reason, GDPR may not help • However, if the P2B Regulation applies to the platform, they can’t do that
How can GDPR help platform workers? 3 of 3 • Nonpayment of submitted work • Same argument applies as for decisions regarding account suspension/closure
Problems applying GDPR in labor platforms • Main problems: lack of knowledge, lack of enforcement • Some platforms and DPAs don’t understand/agree on what is “personal data” • More “technical” problems: • Personal data may belong to multiple data subjects • Example: a client rating of a worker might be personal data of both • Article 15.4 ‘Exception Clause’ (response: Recital 63) • Example: automated performance evaluation algorithms: “trade secrets”?
Art. 40 GDPR
Topics for an Art. 40 Code — 1 of 2 • Clarification of the term “personal data” in the context of labor platforms • Clarification the interpretation and application of Art. 15.4 GDPR • Clarification of interpretation and application of Art. 22 • Clarification regarding information to be provided (no secret ratings) • Guidance on ensuring the transparency, accuracy and fairness of rating, evaluation, and classification systems • Guidance for when a customer is the controller • Best practices for improving ease of access to data subjects’ personal data • Mediation/external dispute resolution procedures
Topics for an Art. 40 Code — 2 of 2 • Guidance on ensuring the transparency, accuracy and fairness of rating, evaluation, and classification systems • Guidance for when a customer is the controller • Best practices for improving ease of access to data subjects’ personal data • Mediation/external dispute resolution procedures • Recourse to supervisory authority remains available • Recourse to judicial remedy remains available
Other strategies • EDPB recommendations and guidelines • DPA oversight procedures
Paper • https://tinyurl.com/etui-gdpr-paper
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