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How does the new data protection bill affect platform gig workers?

By Soujanya Sridharan and Dr. Sarayu Natarajan

Platform work and data: the intersection

Every time you use a ride-hailing app, the matching algorithm processes several bits of data, including the location and availability of service providers, to bring a cab to you. This kind of data is at the heart of much of the modern digital economy, particularly the platform gig economy. Platform strategies like algorithm-driven matching and gamification are unsustainable in the absence of significant volumes of data. 

Technology predicated on such data brings inherent risks of surveillance and erosion of worker autonomy. However, the recently released draft of the Digital Personal Data Protection Bill, 2022 appears to create a gap in protecting workers whose data these technologies are built on. While the current draft is a promising move towards protecting individuals’ data privacy, it is critical to bring the conversations around work and welfare protections closer to data rights debates in order for India to leverage its forthcoming “techade”.

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‘Deemed consent’ and platform gig work

The Bill contains provisions related to ‘deemed consent’ to access and process data. Alongside exceptions to active consent for the state, the bill contemplates the protection of data collected by employers about employees as well under Section 8 of the Act.  Section 8(7) of the Bill allows for the automatic processing of a data principal’s personal data for the purposes of employment, including recruitment, verification of attendance and assessment of performance, among others. 

Extending the ‘deemed consent’ provisions to employment has disconcerting implications, particularly in the context of workers within the gig economy. This is because platforms in the gig economy rely on tenuous means of data collection and processing, ultimately using insights derived from data as the final arbiter of work in the gig economy. 

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Prima facie, Section 8(7) on deemed consent for purposes related to employment cannot be extended to digitally-mediated work by platforms employing gig workers. This is because platforms have consistently maintained that gig workers are not employees, but are mere independent service providers that find work through platforms. In fact, platforms have avoided employment-related compliance by claiming the status of ‘digital intermediaries’ that connect ‘service providers’ (re: gig workers) and customers. 

Should active consent not be sought, future data collection and processing relating to gig workers by platforms operating in India can be considered illegal for failing to meet the requirements of employment under Section 8(7). On the other hand, extending the deemed consent clause to platform work is also problematic —not just because of its inherent erosion of active consent, but because gig work, more than any other form of work, is datafied

Active consent, not deemed consent, for data collection, processing and exchange should be the express requirement in the context of data fiduciary (here, platforms) – data principal (here, gig workers) relationships.

Data rights and the realities of the platform economy  

The clause on consent exemptions for ‘employment-related purposes’ within the DPDP Bill, 2022 also does not appear to recognise heterogeneous work arrangements that constitute contemporary notions of work. Growing recognition of such arrangements has led to policy action to regulate work in the gig economy, as illustrated by the Code on Social Security, 2020, the Motor Vehicles Aggregator Guidelines, 2020 and specific aggregator regulations emerging from states such as Delhi, Maharashtra and Karnataka

These policies work in tandem with each other to further the cause of gig workers’ rights and protections in the ‘digital economy’. However, Section 8(7) of the DPDP Bill, 2022 ignores these nuances and takes a homogenous view of employment and work. It is important to recognise that privacy, data protection and data rights are just as important for gig workers and that the implications of the DPDP Bill, 2022 must supplement the agenda of securing decent working conditions for workers in the gig economy. 

Way forward

Platform-mediated gig work is a site of conflict between platforms, gig workers and governments. The presence of a large workforce and the existing regulatory vacuum around gig work has allowed platforms to scale at a rapid pace in India. However, while generating employment and action, these platforms have not provided adequately for workers’ welfare and well-being. 

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The precariousness inherent to gig work in the platform economy has produced dual challenges for regulators: one, to transform the conditions of work and labour engagement to deliver greater social security; two, to mitigate the worst effects of algorithmic surveillance such that workers are imparted greater control over their conditions of work. 

It is important for Indian regulators to acknowledge that the dual challenges are not delinked from each other; indeed, their combined actions may further disenfranchise gig workers. In order to reap the gains of digitisation and make them available to all workers, regulators must seek to incorporate an integrated view of data rights and the rights of platform workers in future policy. Data regulation, including personal data protection (and any proposed mechanisms to govern non-personal data), must acknowledge workers’ data rights while labour regulation must be reimagined to include the rights of a new generation of workers.

Soujanya Sridharan is a Researcher at Aapti Institute, Bangalore, and Dr. Sarayu Natarajan is the Founder of Aapti Institute.

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This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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