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Dutch court orders greater data transparency for platform workers
15/03/2021
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Ride-hailing companies must disclose how their automated systems deduct earnings, assign work, and suspend drivers, as well as reveal how their surveillance systems are used, a Dutch court has ruled.

Yaseen Aslam and James Farrar, who won a landmark case against Uber in the UK’s Supreme Court in February, led new claims by a group of UK drivers and one Portuguese driver who sought access to their personal data as well as the right to transparency of platforms’ algorithmic management systems.

The App Drivers and Couriers Union (ADCU) and the Worker Info Exchange (WIE), which are led by Aslam and Farrar, respectively, argued that terminations based on allegations of fraud amounted to performance-related dismissals that platforms misclassify to avoid their responsibilities to exercise due process as an employer. 

The Dutch court ordered Uber to reveal data used as the basis for its decision to dismiss two drivers accused of fraudulent activity and that the San Francisco-headquartered tech company must also provide a detailed breakdown of ratings for every trip.

Until now Uber has only provided drivers with an aggregate rating based on the last 500 trips conducted. To protect passenger identification, however, Uber may anonymise data related to trip start and end points.

In a separate ruling, Ola Cabs was ordered to disclose how drivers’ personal data is processed through its Guardian surveillance system. The system uses machine learning and artificial intelligence to identify trips the platform describes as “irregular trip activity”.

The India-based ride-sharing and delivery company was also ordered to disclose profiling data, which is used in automated work allocations, as well as to disclose its “earnings” profile and “fraud probability” profile maintained on every driver.

In the case of one Ola driver, the court held that a decision to make deductions from earnings amounted to an automated decision lacking human intervention. Such algorithmic decisions attract legal protections according to article 22 of the EU’s General Data Protection Regulation (GDPR).

The court rejected a similar argument against Uber, however, as the platform maintained human oversight of the algorithm. No penalties or damages were imposed on the company.

Drivers have the right to demand human intervention, the right to express their point of view, and to appeal such decisions

The ADCU and WIE said the rulings will bring much-needed transparency about the nature of driver surveillance systems and how they are used against a “vulnerable workforce”.

“For the first time the courts have found that platform ride-share drivers have indeed been subject to automated decisions as defined by Article 22 of the GDPR,” said Anton Ekker, the privacy lawyer representing the drivers.

“This confirms additional rights that drivers can now access to challenge unfair automated decision such as those relating to pay, performance, and dismissals. Drivers have the right to demand human intervention, the right to express their point of view, and to appeal such decisions.”

The Amsterdam District Court rejected Uber’s arguments that the UK- and Portugal-based drivers did not have a right to bring complaints before the courts in Amsterdam where its European regional head office is located.

The court also rejected Uber’s argument that drivers taking collective action to seek access to their data amounted to an abuse of data protection rights and confirmed the right of trade unions to establish a gig workers’ data trust.

The court has confirmed Uber’s dispatch system does not equate to automated decision-making, and that we provided drivers with the data they are entitled to

Farrar, director of WIE, said the judgment was “a giant leap forward” to holding platforms accountable for “opaque and unfair” automated management practices.

“This ruling is a massive victory for our members who have been subject to unfair treatment by Uber and Ola using oppressive electronic surveillance systems,” added Aslam, president of the ADCU.

“Workers are proving again to be resilient and creative in the mission to build collective power and reduce the asymmetry of power between themselves and global platforms like Uber and Ola.”

An Uber spokesperson said: “This is a crucial decision. The court has confirmed Uber’s dispatch system does not equate to automated decision-making, and that we provided drivers with the data they are entitled to.

“The court also confirmed that Uber’s processes have meaningful human involvement. Safety is the number one priority on the Uber platform, so any deactivation decision is taken extremely seriously with manual reviews by our specialist team.”

The WIE and the ADCU are considering appeals against certain aspects of the court’s judgment, which they believe unduly restrict the rights of drivers.

These include the requirement that workers show they have been subject to automated decision-making before demanding transparency of such data and a requirement that drivers provide greater specificity on the personal data sought rather than placing the burden on platforms to explain what data is held and how it is processed. 

Further cases relating to unfair automated decision-making as defined by article 22 of the GDPR remain before the courts in Amsterdam.

Ola did not immediately respond to a request for comment.

Back in the UK, the ADCU has written to Transport for London (TfL) seeking enforcement of the UK Supreme Court’s Uber judgment, specifically that all app drivers – of whom there are approximately 60,000 in London – have their right to minimum wage and holiday pay protected by the regulator.

Lawyers for the union have warned they will bring legal action should TfL fail to enforce the court’s ruling.