/ Personal data protection, only for “digital” workers?

Jaime Urzúa
Associate Attorney
Alessandri Abogados

On March 11, Law 21,431 was published in the Official Gazette, which regulates the contract of workers of digital service platform companies. Particularly, those of withdrawal, distribution and/or delivery of goods or merchandise, and minor passenger transportation.

This law, in addition to creating a new contract in the field of labor law, establishes certain obligations to the digital service platform company. Thus, the employer is obliged to sign a contract with certain minimum contents, to train the workers and provide them with personal protection elements, to take out insurance to cover damages that may be suffered by the personal property of the workers and to recognize the possibility of independent workers to access the social security system.

Beyond the novelties of a labor analysis, this law stands out for requiring that the contract for the provision of services of workers of digital platforms has the determination of the terms and conditions under which the personal data of the dependent worker must be treated and the impact of the qualifications assigned by users. It orders that the contract for the provision of services of independent workers has rules for the protection of personal data to which the digital platform company has access.

It deserves to be celebrated that the legislator ensures the protection of the personal data of these right holders. However, it is curious that the law establishes these criteria for one type of workers and not for others. It seems that the personal data of workers who provide their services for digital platforms are privileged over those who are not linked to this type of companies.

This is an expression of a typical dichotomy of the digital transformation: the care and protection of data in digital environments to the detriment of those treated in physical or analog environments. But it turns out that the content -the protected subject- is the personal data, whatever the form or modality of its creation or organization. That is why it is strange that this new legislation has put itself only in the place of a class of workers in circumstances that, in this area, protection should be general. This is established in our Political Constitution, which recognizes the protection of personal data as a fundamental right.

On the other hand, the new law refers specifically to the impact of the qualifications assigned by users to these workers. This is established in order to make transparent the rules on which the algorithms that assign orders or trips according to the score of the workers on these platforms operate. Although the above is positive, since it avoids arbitrary discrimination or algorithmic biases that influence the performance of the work provided, it is missed that this law has referred to one of the most important data and that abounds in this type of platforms, which is geolocation. The international trend (the bill on personal data also does so) is to consider this category of data as sensitive, given the importance of its nature and the fact that it operates as “discrimination factors”. The new law is silent on the matter.

Finally, the general rule for workers who are not subject to these new contract is provided by article 154 bis of the Labor Code, which establishes the employer’s obligation to keep confidential all information and private data of the worker to which it has access during the employment relationship.

It would have been an excellent opportunity for this bill to have incorporated the concepts previously discussed in the Labor Code, extending its application to all types of labor relations. The ground is open to continue legislating on the matter and raising the standards of protection that are at stake.