Article 12-A and the presumption of an employment relationship for digital labour platforms

Teresa Coelho Moreira (Associate Professor with Aggregation at the Law School of the University of Minho | Integrated member of JusGov )

Nowadays there is an app for everything or almost everything, from simpler activities, such as food delivery, to more complex ones, such as providing legal services, with new digital platforms emerging every day. Indeed, in theory, any activity can be transformed into a task that can be performed through digital platforms and we witnessed this during the pandemic.

In view of this situation, one of the issues that assumes enormous importance is the qualification of the existing relationships between those who provide the activity in digital platforms, with numerous cases having been already ruled around the world.

Bearing this situation in mind, the importance of establishing presumptions increases. However, the presumption provided for in Article 12 of the Portuguese Labour Code, although positive, was envisaged for typical labour relations, for employment relations in the pre-digital era. Regarding the new ways of providing work, the work in digital platforms, it is necessary to recognize the inadequacy of the presumption of employment to face the emerging problems of the new ways of working through digital platforms. Factors such as, inter alia, the ownership of work equipment and instruments, the existence of a work schedule determined by the beneficiary of the activity and the payment of a certain remuneration, are classic signs of legal subordination, but they are hardly operational signs to address the new types of dependency resulting from the provision of services for a particular company, via platforms.

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Finally, the ECJ is interpreting Article 22 GDPR (on individual decisions based solely on automated processing, including profiling)

Alessandra Silveira (Editor)

1) What is new about this process? Article 22 GDPR is finally being considered for before the European Court of Justice (ECJ) – and on 16 March 2023, the Advocate General’s Opinion in Case C-634/21 [SCHUFA Holding and Others (Scoring)][1] was published. Article 22 GDPR (apparently) provides a general prohibition of individual decisions based “solely” on automated processing – including profiling – but its provisions raise many doubts to the legal doctrine.[2] Furthermore, Article 22 GDPR is limited to automated decisions that i) produce effects in the legal sphere of the data subject or that ii) significantly affect him/her in a similar manner. The content of the latter provision is not quite clear, but as was suggested by the Data Protection Working Party (WP29), “similar effect” can be interpreted as significantly affecting the circumstances, behaviour or choices of data subjects – for example, decisions affecting a person’s financial situation, including their eligibility for credit.[3] To this extent, the effectiveness of Article 22 GDPR may be very limited until EU case law clarifies i) what a decision taken solely on the basis of automated processing would be, and ii) to what extent this decision produces legal effects or significantly affects the data subject in a similar manner.

2) Why is this case law so relevant? Profiling is an automated processing often used to make predictions about individuals – and may, or may not, lead to automated decisions within the meaning of the Article 22(1) GDPR. It involves collecting information about a person and assessing their characteristics or patterns of behaviour to place them in a particular category or group and to draw on that inference or prediction – whether of their ability to perform a task, their interest or presumed behaviour, etc. To this extent, such automated inferences demand protection as inferred personal data, since they also make it possible to identify someone by association of concepts, characteristics, or contents. The crux of the matter is that people are increasingly losing control over such automated inferences and how they are perceived and evaluated by others. The ECJ has the opportunity to assess the existence of legal remedies to challenge operations which result in automated inferences that are not reasonably justified. As set out below, the approach adopted by the Advocate General has weaknesses – and if the ECJ adopts the conditions suggested by the Advocate General, many reasonable interpretative doubts about Article 22 GDPR will persist.

3) What questions does Article 22 GDPR raise?  Does this Article provide for a right or, rather, a general prohibition whose application does not require the party concerned to actively invoke a right?  What is a decision based “solely” on automated processing? (which apparently excludes “largely” or “partially” but not “exclusively” automated decisions). Will the provisions of Article 22 GRPD only apply where there is no relevant human intervention in the decision-making process? If a human being examines and weighs other factors when making the final decision, will it not be made “solely” based on the automated processing? [and, in this situation, will the prohibition in Article 22(1) GDPR not apply]?

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