The Serious Business of Having Fun: EU Legal Protection for Those Working Online in the Digital Economy

Abstract

While a huge amount of judicial and academic attention has been paid to the employment status of those who provide physical services via an app, such as ride-hailing services by Uber drivers and food delivery services by Deliveroo cyclists, much less attention has been given to the legal position of those providing services as influencers and content creators in the online world via platforms such as Instagram and YouTube. It may be possible that some fall within the Court of Justice’s increasingly broad definition of ‘worker’, a position helped by the presumption of worker status in the proposed Platform Work Directive. If so, they will benefit from the full range of EU employment rights. But many are genuinely self-employed and so are entitled to almost no employment protection. Yet, like workers, they have a vulnerability. If their access to these platforms is turned off, it is highly damaging for their work; and there may be no obvious alternative platform to give them the profile which is necessary for them to succeed. The EU is showing itself to be innovative in responding to this challenge: first, with an extended personal scope under the proposed Platform Workers Directive which gives some rights to ‘persons performing platform work’ (PPPW) (and more rights still to ‘platform workers’), and second, in the P2B Regulation 2019/1150 and the Digital Services Act, by moving away from the focus on the status of the individual and paying attention instead to the obligations of the platform. These obligations can be summed up by the acronym TAR: Transparency, Accountability and Remedies. They are procedural rather than substantive obligations but they do recognize the need for at least some protection for those who, in the past, would have been denied it. This legislation is, indirectly, beginning to reshape our understanding of what constitutes labour law. Gig Economy, Precarity, Worker Protection, Online Platforms, Influencers, Content Creators