Government & Policy

Drivers in Europe net big data rights win against Uber and Ola


a woman uses the Uber app on an Samsung smartphone
Image Credits: Adam Berry / Getty Images

In a major win over opaque algorithmic management in the so-called gig economy an appeals court in the Netherlands has found largely in favor of platform workers litigating against ride-hailing giants Uber and Ola — judging the platforms violated the drivers’ rights in a number of instances, including when algorithms were involved in terminating driver accounts.

The court also ruled the platforms cannot rely on trade secrets exemptions to deny drivers access to their data. Although challenges remain for regional workers to use existing laws to get enough visibility into platforms’ data processing to know what information to ask for to be able to meaningfully exercise their data access rights.

The appeal court rulings can be found here, here and here (in Dutch).

The appeal was brought by the not-for-profit data trust Worker Info Exchange (WIE) in support of members of the App Drivers & Couriers Union (ADCU) in the U.K. and a driver based in Portugal.

One case against Uber’s robo-firings involved four drivers (three based in the U.K., one in Portugal); a second case against Uber over data access involved six U.K.-based drivers; while a data access case against Ola involved thee U.K.-based drivers.

In the data access cases drivers were seeking information such as passenger ratings, fraud probability scores, earning profiles, as well as data on the allocation of journeys to drivers — including Uber’s batch matching and upfront pricing systems — as well as information about the existence of automated decision-making touching their work on the platforms.

Several decisions taken by the ride-hailing platforms were found to meet the relevant legal test of automated decision-making — including assigning rides; calculating prices; rating drivers; calculating ‘fraud probability scores’; and deactivating drivers’ accounts in response to suspicions of fraud — meaning drivers are entitled to information on the underlying logic of these decisions. (And also to a right to meaningful human review if they object to decisions.)

“The court ordered that Uber must explain how driver personal data and profiling is used in Uber’s upfront, dynamic pay and pricing system. Similarly, the court ordered Uber to transparently disclose how automated decision making and worker profiling is used to determine how work is allocated amongst a waiting workforce,” said WIE in a press release.

“Ola Cabs was also ordered to disclose meaningful information about the use in automated decision making of worker earnings profiles and so called ‘fraud probability scores’ used in automated decision making for work and fares allocation. The court also ruled that internally held profiles relating drivers and associated performance related tags must be disclosed to drivers.”

Commenting in a statement, James Farrar, director of WIE, added:

This ruling is a huge win for gig economy workers in Britain and right across Europe. The information asymmetry & trade secrets protections relied upon by gig economy employers to exploit workers and deny them even the most basic employment rights for fundamentals like pay, work allocation and unfair dismissals must now come to an end as a result of this ruling. Uber, Ola Cabs and all other platform employers cannot continue to get away with concealing the controlling hand of an employment relationship in clandestine algorithms.

Too many workers have had their working lives and mental health destroyed by false claims of fraudulent activity without any opportunity to know precisely what allegations have been made let alone answer them. Instead, to save money and avoid their responsibility as employers, platforms have built unjust automated HR decision making systems with no humans in the loop. Left unchecked, such callous systems risk becoming the norm in the future world of work. I’m grateful for the moral courage of the courts expressed in this important ruling.

The companies have been given two months to provide the requested information to the drivers (with the risk of fines of daily several thousand euros apiece for non-compliance), as well as being ordered to pick up the majority of the case costs.

Taking the algorithm to court

Legal challenges against the algorithmic management practices of Uber and Ola were originally lodged on behalf of drivers in the U.K. back in 2020 — in July and September — centred on digital and data access rights enshrined in the European Union’s General Data Protection Regulation (GDPR).

The pan-EU regulation provides individuals with rights to data held on them and information about algorithmic decision making applied to them — where it has a substantial or legal effect (such as employment/access to work). And while the U.K. is no longer an EU member it transposed the European data protection framework into national law before leaving the bloc. Which means that (for now) it retains the same suite of data rights.

The appeal court decisions yesterday follow earlier judgements, in March 2021, by the Court of Amsterdam — which did not accept the robo-firing charges in those instances and largely rejected the drivers’ requests for specific data. However the court also tossed the platforms’ arguments seeking to deny the right of workers to collectively organize their data and establish a data trust as an abuse of GDPR data access rights — leaving the door open to fresh challenges.

Transparency is a key lever in the fight for platform workers rights since there’s no way for workers to assess the fairness of algorithms or automated decisions being applied to them without having access to information on the processes involved. So this ruling looks significant in that it could help crack open black boxes systems used for algorithmic management of workforces in a way that has, oftentimes, shielded platforms from scrutiny over the fairness (or indeed legality) of their decisions.

This is also a class of worker that still typically lacks full employment rights and protections, exacerbating the power imbalance vs data-mining platforms and supercharging the risks of worker exploitation. (Albeit, legal challenges in Europe have unpicked some bogus claims of self employment by platforms; while planned EU legislation in this area aims to tackle worker precariousness by setting minimum standards for platform work.)

While the legal challenges against Uber and Ola involved a small number of drivers, and the rulings naturally reference their individual circumstances, the appeal victory could force gig platforms to change their process — not least to avoid the risk of more challenges being filed.

Conditions of their licences to operate in markets like London may also create regulatory problems for them if they’re seen to be failing to prevent recurrences of data protection issues, the litigants suggest.

Although it also may not yet be the end of the road for these particular cases as the companies could seek to appeal the decisions to the Dutch Supreme Court.

In a statement an Uber spokesperson told us it is “carefully” studying the rulings, adding that it will take a decision on whether to file an appeal “in due course”.

(Ola was also contacted for comment but at the time of writing it had not responded.)

In other remarks provided to TechCrunch Uber said:

We are disappointed that the court did not recognize the robust processes we have in place, including meaningful human review, when making a decision to deactivate a driver’s account due to suspected fraud. Uber maintains the position that these decisions were based on human review and not on automated decision making, which was acknowledged earlier by the previous court. These rulings only relate to a few specific drivers from the UK that were deactivated in the period between 2018 and 2020 in relation to very specific circumstances.

Uber also flagged one instance in which it said the appeal court found it did have meaningful human involvement in an automated decision related to a termination.

In the other cases, where the court found in favor of the litigants over robo-firings, Uber was unable to prove that the human intervention was much more than a “symbolic act” — meaning it could not demonstrate the staff involved had been able to exercise a meaningful check on the automated decision that led to drivers being fired.

On this WIE said the drivers in the lawsuit faced “spurious allegations of ‘fraudulent activity’ by Uber and were dismissed without appeal”. “When the drivers requested an explanation for how Uber systems had surveilled their work and wrongly determined they had engaged in fraud, Uber stonewalled them,” it claimed, adding: “The decision to dismiss the drivers was taken remotely at an Uber office in Krakow and the drivers were denied any opportunity to be heard. The court noted that Uber had failed to make ‘clear what the qualifications and level of knowledge of the employees in question are. There was thus insufficient evidence of actual human intervention.’”

Discussing the outcome of the appeal in a phone call with TechCrunch, Farrer — a former Uber driver who has also successfully sued the ride-hailing giant over the employment status of U.K. drivers — said it would be “foolish” if the platforms seek to appeal to the Supreme Court. “Not only is the ruling, very decisive but it’s very sensible,” he told us. “And it also gives them very sensible guidance, in my opinion, in how you should be managing the platform in this way.”

Uber loses gig workers rights challenge in UK Supreme Court

“What the court was coming down against Uber on was this very absolutist approach that they took to managing fairly straightforward HR problems,” he argued, describing it as “nonsense” for platforms to fire someone for alleged fraud but refuse to tell them why, preventing them from responding to the charges by claiming doing so would undermine trade secrets and platform security.

“It’s nonsense. Anybody can see that. And that’s what they relied on. They relied on being able to get away with doing that. And so, okay, you may choose to — foolishly — appeal that or you may want to take a sensible line that that’s not really a sensible or sustainable position to take. But if you want to continue taking it we’ll continue beating you on it. So I think, if they’re up for it, there’s some really good learning points and signposting for them — about how platforms in the modern day ought to be going about managing people.”

On the data access issue, Farrer said the outcome of the appeal shows they’re “bumping up against the limits of the law” — since the court upheld some earlier decisions to withhold data from drivers based on their asks not being specific enough. The Catch-22-style situation here is if the platforms aren’t fully up-front and transparent about the data they’re processing how can the drivers know what to ask them for with enough specificity to get given the data? So setting governance on platform transparency is an area lawmakers should be focused on.

“On that point we didn’t make significant progress,” he said. “We asked for access to all personal data. And then the platforms kicked back and — denial and obfuscation — either say you need to specify [the data you want] or they’ll tell you they’re taking a ‘phased approach’, whatever that is — but without telling you that that’s what they’re doing. So they’ll give you some data and then later, if you complain, they can say, well, we were taking a phased approach. But they forgot to tell anyone.

“And here what the court is saying is that if you’re not getting all the data you think you want then you have an obligation, under Article 15, to go back and say, what are the categories of data you’re processing and then hone your requests based on on that. But… that’s where we reach the limits of the law, I suppose. Because if these companies are not really very clear or transparent, or if they’re vague about the categories of data they say the processing, then you’re still in that chicken and egg problem that you don’t know what you don’t know. So that still kind of remains the same.”

Per Farrer, the litigants did get one good result on this aspect via the appeal — in relation to data processing categories in an Uber guidance document, which he said the court agreed Uber should have to hand over. “So I think what the court is saying is that when you’re able to be more specific there’s very little defence [in withholding data]. So when we’re getting to the specifics around automated decision-making, or also information about automated decision-making, as well as data processing around some of these difficult decisions, then, yeah, there’s little defense in not giving it.”

Gig worker rights organizations are also concerned about emergent rights risks coming down the pipe — warning, for example, about the rise of personalized pricing (aka dynamic pricing) — as platforms seek ever more complex systems for calculating and fragmenting payments to workers (and, indeed, the amounts billed to users).

Dynamic pricing not only clearly boosts opacity around how the platforms’ payment/charging systems work but could create fresh opportunities for harm by scaling unfairness and discrimination on both sides of two-sided marketplaces and in ever more multi-faceted ways. (Such as, for example, female users facing higher surge prices at night based on the perception of increased vulnerability.)

WIE points to a paper published in the Harvard Business Review last year that warned algorithmic pricing systems pose policy challenges which are far broader than collusive conduct — and can lead to higher prices for consumers in competitive markets (even without collusion; so outside traditional antitrust law) — with the researchers called for pricing regulation to prevent harms. And it argues pretty much the same set of harms issues arise for platform workers subject to dynamic pricing too.

“It is very important for us to be able to help workers understand the basis for how and what they’re being paid but also to safeguard against personalization in pay — either directly or indirectly,” said Farrer on this. “These platforms have furiously denied personalization in pay. But sure, what’s the optimization in here then? I mean it’s going to happen directly or indirectly and we absolutely have to have an eagle eye on it, because if not, there will be abuses because the controls aren’t there. And because as these platforms seek to optimise that’s the effect it’s going to have — either directly or indirectly.”

What will WIE be doing with the driver information it has been to extract from platforms?

“We are already starting to get data at scale — and we are working with data scientists at the moment to build the analytics we need to [build workers’ collective bargaining power],” said Farrer. “Where it’s transformative is… there’s an information power asymmetry between the worker and the platform. The workers have very weak bargaining power because of the oversubscription problem. Because of the lack of a sensible employment relationship that confers rights. Because of the difficulty in building collective union participation, although that’s changing rapidly for ADCU.

“Then we need to find the means to building that collective power. Platforms trade on our personal data but it’s our personal data so we have to try and beat them at their own game — or fight them in their own game — by aggregating that data. And aggregating that data will be able to tell what are the true pay conditions. Because so many workers have to rely on the myth of what the platform is telling them, rather than what’s really happening… And that picture is actually getting more complex. Because companies like Uber and Deliveroo they’re not happy just to rely on set pay being highly variable. They actually want to take a sledgehammer to the pay structure and fragment it into more and more pieces — incentives for this, bonus for this, boost for this — so by the time you’re done you don’t know what you’re being paid or what the basis of your pay is. And that’s a very deliberate thing… And the move to dynamic pay is a big part of that.”

“We are already getting enough information to be very useful. So we seem to have ironed out some of those problems in that at least what we’re getting is the trip information. So we can we can do analysis on that much at least,” he added. “But there’s still, of course, and there will always be a battle over the level of algorithmic transparency that’s required from the workers relative to what these platforms are willing to do.

“And, of course, their message of algorithmic control is a moveable feast. We’ve seen that over the last couple of years — with upfront pricing and now dynamic pricing. Those are progressive changes in the development of the platform and our job is to try and understand the processing that’s going on with that — and that’s a moveable feast in that there’s always going to be a challenge because we’re going to want to know and they’re going to want to not tell us.”

Uber et al.’s push-back on calls for greater transparency is — typically — to claim their anti-fraud systems won’t work if workers know enough about how they function to be able to circumvent them. They also tend to claim they’re prevented from releasing more data because they’re protecting passengers’ privacy. (It remains to be seen what multi-tiered excuses platforms will drum up to argue against providing total pay transparency.)

Farrer responds to such lines by suggesting the platforms are seeking to deflect attention off their own security failings and management and regulatory deficiencies — by creating a red-herring concept of driver “fraud” in order to foist blame for their own business management failings onto rights denuded workers.

“There’s no real plausible way that the driver can defraud the platform — because they don’t have access to any kind of credit card information or anything behind the scene. And I think the whole idea of account account security is a sensitive issue for Uber, and certainly their investors, because they need to maintain the confidence of passengers that if you give me your personal data and your credit card details, it’ll be secure. So I think for them they would either consciously or unconsciously prefer to blame their platform security problems on the worker, rather than admitting that they may have their own cybersecurity problems to deal with,” he suggested.

“These are hollowed out companies,” he added. “They want to automate as much of the management inside the company as they do service delivery outside the company. So if they can find a way to tack something on an 80:20 [system accuracy] basis that’s good enough for them because the workers have no recourse anyway. And anyway, the whole nature of the platform is to be massively over oversubscribed. So they’re not short of drivers that they can just sling off.”

“The truth of it is, is that transport business — I don’t care whether it’s road transport, air, rail — it’s a capital intensive, labour intensive, low margin business, and it always has been. But you can still make money in it. But what these platforms thought they could do is descend from the cloud, deny they’re a transport operator, insist that they’re a technology company, and cream margins away from that business that were never there to begin with. And so unless they want to acclimatize themselves to the industry that they’re in — and figure out how they can make money in a low margin business, instead of trying to take the easy way and illegal way — then, yeah, they are going to face annihilation. But maybe if they get some sensible people in to understand how to devise a strategy for the business they’re really in, not the business they want to be in, then maybe they’ve have better luck.”

In the EU, lawmakers are aiming to make it harder for platforms to just sling off precarious workers — by setting down minimum standards atop a (rebuttable) presumption of employment for gig workers. Although the file has proved divisive with Member States and the Council still hasn’t adopted a negotiating position. But MEPs in the parliament agreed their position back in February.

The litigants are calling for EU lawmakers to get on and pass this reform to improve protections for gig workers. And while Farrer confirms they won’t stop filing legal challenges to try to unpick exploitation he argues there’s a clear need for lawmakers to get a handle on the power imbalance and pass proper regulation to guarantee workers are protected without needing to spend years fighting through the courts. (The much touted modern working practices employment reforms, promised by former U.K. PM Theresa May in the wake of the 2017 Taylor review, ended with a damp squib package of measures that unions savaged on arrival as “big on grandiose claims, light on substance”; and which Farrer dismisses now as “nothing” having being done.)

He also suggests regulators are sleeping on the job — pointing, for example, to Transport for London’s (TfL) licensing for Uber which requires any changes to its business model need to be communicated to it 30 days in advance. Yet when WIE asked TfL if it’s reviewed Uber’s switch to upfront pricing the regulator failed to respond. (We’ve reached out to TfL with questions about this and will update this report with any response. Update: The regulator ignored our questions asking for confirmation of whether or not Uber notified it of the change to its pricing model in advance; whether it has reviewed the new business model and if it has any concerns; and whether it has sought a legal review of Uber’s switch to dynamic pricing — sending us this brief statement instead: “We are aware of the judgment from the Amsterdam Court of Appeal and are considering the ruling.” )

“Workers are already in a very weak position. But if you’ve got this tacit collusion problem, well, that amounts to grey- and black-listing of the worker — and that’s illegal under employment law. So for those reasons, we really have our work cut out to to aggregate this data and keep a very close eye on this,” he said, adding: “We need a platform worker directive equivalent in the U.K.”

Where workers right are concerned there’s actually more bad news zooming into view in the U.K. — where the government is in the processing of passing a data reform bill the litigants warn will strip away some of the protections workers have been able to exercise in this case. Such as a requirement to carry out a data protection impact assessment (a procedure that would typically entail platforms consulting with workers — so the reform looks set to discourage that type of engagement by platforms).

The draft bill also proposes to raise the threshold for individuals to get access to their data by allowing more leeway to platforms to deny requests — which could mean workers in the U.K. have the added challenge of having to argue for the validity of their right to access their own data, even to just get a chance of a sniff of seeing any of the stuff.

So, as it stands, U.K. lawmakers are intending to burden workers with even more friction atop a process that can already take years of legal action to see even a partial victory. Making life harder for platform workers to exercise their rights obviously won’t tip the already-stacked scales on gig economy exploitation.

The litigants are urging parliamentarians to amend the draft reform to ensure key protections stand. (Albeit, given the U.K.’s sclerotic record in this area, it may take a change of government before there’s any meaningful action to rein in platform power and support workers rights.)

In a statement, Farrer dubbed the ruling “a bittersweet victory considering that the U.K. government plans to strip workers of the very protections successfully claimed in this case”, adding: “Lawmakers must learn important lessons from this case, amend the bill and protect these vital rights before it is too late. Similarly, the Council of the European Union must not hesitate in passing the proposed Platform Work Directive as passed by the European Parliament.”

Dutch court rejects Uber drivers’ ‘robo-firing’ charge but tells Ola to explain algo-deductions

UK Uber drivers are taking the algorithm to court

Ola is facing a drivers’ legal challenge over data access rights and algorithmic management

More TechCrunch

After Apple loosened its App Store guidelines to permit game emulators, the retro game emulator Delta — an app 10 years in the making — hit the top of the…

Adobe comes after indie game emulator Delta for copying its logo

Meta is once again taking on its competitors by developing a feature that borrows concepts from others — in this case, BeReal and Snapchat. The company is developing a feature…

Meta’s latest experiment borrows from BeReal’s and Snapchat’s core ideas

Welcome to Startups Weekly! We’ve been drowning in AI news this week, with Google’s I/O setting the pace. And Elon Musk rages against the machine.

Startups Weekly: It’s the dawning of the age of AI — plus,  Musk is raging against the machine

IndieBio’s Bay Area incubator is about to debut its 15th cohort of biotech startups. We took special note of a few, which were making some major, bordering on ludicrous, claims…

IndieBio’s SF incubator lineup is making some wild biotech promises

YouTube TV has announced that its multiview feature for watching four streams at once is now available on Android phones and tablets. The Android launch comes two months after YouTube…

YouTube TV’s ‘multiview’ feature is now available on Android phones and tablets

Featured Article

Two Santa Cruz students uncover security bug that could let millions do their laundry for free

CSC ServiceWorks provides laundry machines to thousands of residential homes and universities, but the company ignored requests to fix a security bug.

10 hours ago
Two Santa Cruz students uncover security bug that could let millions do their laundry for free

OpenAI’s Superalignment team, responsible for developing ways to govern and steer “superintelligent” AI systems, was promised 20% of the company’s compute resources, according to a person from that team. But…

OpenAI created a team to control ‘superintelligent’ AI — then let it wither, source says

TechCrunch Disrupt 2024 is just around the corner, and the buzz is palpable. But what if we told you there’s a chance for you to not just attend, but also…

Harness the TechCrunch Effect: Host a Side Event at Disrupt 2024

Decks are all about telling a compelling story and Goodcarbon does a good job on that front. But there’s important information missing too.

Pitch Deck Teardown: Goodcarbon’s $5.5M seed deck

Slack is making it difficult for its customers if they want the company to stop using its data for model training.

Slack under attack over sneaky AI training policy

A Texas-based company that provides health insurance and benefit plans disclosed a data breach affecting almost 2.5 million people, some of whom had their Social Security number stolen. WebTPA said…

Healthcare company WebTPA discloses breach affecting 2.5 million people

Featured Article

Microsoft dodges UK antitrust scrutiny over its Mistral AI stake

Microsoft won’t be facing antitrust scrutiny in the U.K. over its recent investment into French AI startup Mistral AI.

12 hours ago
Microsoft dodges UK antitrust scrutiny over its Mistral AI stake

Ember has partnered with HSBC in the U.K. so that the bank’s business customers can access Ember’s services from their online accounts.

Embedded finance is still trendy as accounting automation startup Ember partners with HSBC UK

Kudos uses AI to figure out consumer spending habits so it can then provide more personalized financial advice, like maximizing rewards and utilizing credit effectively.

Kudos lands $10M for an AI smart wallet that picks the best credit card for purchases

The EU’s warning comes after Microsoft failed to respond to a legally binding request for information that focused on its generative AI tools.

EU warns Microsoft it could be fined billions over missing GenAI risk info

The prospects for troubled banking-as-a-service startup Synapse have gone from bad to worse this week after a United States Trustee filed an emergency motion on Wednesday.  The trustee is asking…

A US Trustee wants troubled fintech Synapse to be liquidated via Chapter 7 bankruptcy, cites ‘gross mismanagement’

U.K.-based Seraphim Space is spinning up its 13th accelerator program, with nine participating companies working on a range of tech from propulsion to in-space manufacturing and space situational awareness. The…

Seraphim’s latest space accelerator welcomes nine companies

OpenAI has reached a deal with Reddit to use the social news site’s data for training AI models. In a blog post on OpenAI’s press relations site, the company said…

OpenAI inks deal to train AI on Reddit data

X users will now be able to discover posts from new Communities that are trending directly from an Explore tab within the section.

X pushes more users to Communities

For Mark Zuckerberg’s 40th birthday, his wife got him a photoshoot. Zuckerberg gives the camera a sly smile as he sits amid a carefully crafted re-creation of his childhood bedroom.…

Mark Zuckerberg’s makeover: Midlife crisis or carefully crafted rebrand?

Strava announced a slew of features, including AI to weed out leaderboard cheats, a new ‘family’ subscription plan, dark mode and more.

Strava taps AI to weed out leaderboard cheats, unveils ‘family’ plan, dark mode and more

We all fall down sometimes. Astronauts are no exception. You need to be in peak physical condition for space travel, but bulky space suits and lower gravity levels can be…

Astronauts fall over. Robotic limbs can help them back up.

Microsoft will launch its custom Cobalt 100 chips to customers as a public preview at its Build conference next week, TechCrunch has learned. In an analyst briefing ahead of Build,…

Microsoft’s custom Cobalt chips will come to Azure next week

What a wild week for transportation news! It was a smorgasbord of news that seemed to touch every sector and theme in transportation.

Tesla keeps cutting jobs and the feds probe Waymo

Sony Music Group has sent letters to more than 700 tech companies and music streaming services to warn them not to use its music to train AI without explicit permission.…

Sony Music warns tech companies over ‘unauthorized’ use of its content to train AI

Winston Chi, Butter’s founder and CEO, told TechCrunch that “most parties, including our investors and us, are making money” from the exit.

GrubMarket buys Butter to give its food distribution tech an AI boost

The investor lawsuit is related to Bolt securing a $30 million personal loan to Ryan Breslow, which was later defaulted on.

Bolt founder Ryan Breslow wants to settle an investor lawsuit by returning $37 million worth of shares

Meta, the parent company of Facebook, launched an enterprise version of the prominent social network in 2015. It always seemed like a stretch for a company built on a consumer…

With the end of Workplace, it’s fair to wonder if Meta was ever serious about the enterprise

X, formerly Twitter, turned TweetDeck into X Pro and pushed it behind a paywall. But there is a new column-based social media tool in town, and it’s from Instagram Threads.…

Meta Threads is testing pinned columns on the web, similar to the old TweetDeck

As part of 2024’s Accessibility Awareness Day, Google is showing off some updates to Android that should be useful to folks with mobility or vision impairments. Project Gameface allows gamers…

Google expands hands-free and eyes-free interfaces on Android