Regulación normativa de los derechos de la víctima

289. The expansion of digital tools has fundamental effects on individuals’

lives.⁹⁹⁵ Today, due to the development of ICT, the boundaries of work and personal life are increasingly blurred: personal life flows into professional life and vice versa.⁹⁹⁶ As SNSs are products of the information communication technologies, it is worth examining first in general how ICT affects the separation of work and personal life, before addressing the specific questions raised by SNSs.

290. Technology has not only blurred the lines of the physical workplace: it also blurred the lines of employment. The concept of employment itself is more and more blurred, as the employment contract is not the only way to perform work. Due to gig economy, platform economy, new forms of work have appeared (e.g. gig work, crowdworking, etc.).

995 Ray, J.-E. and Bouchet, J.-P. (2010) ‘Vie professionnelle, vie personnelle et technologies d’information et de communication’, Droit social, (1), p. 46.

On the possible future influence of technology (notably digitalisation) on labour law, see more in György Lőricz’s article on the imaginary Act I of 2032 on the Labour Code (of the future). The article contains a commentary on the most important features of the code, such as employee monitoring and data protection, establishing an employment contract, e-contracts, algorithyms giving orders, working time, etc. Source:

Lőrincz, G. (2018) ‘Kommentár a munka törvénykönyvéről szóló 2032. évi I. törvényhez - Munkajogi sci-fi’, Pécsi Munkajogi Közlemények, 11(1), pp. 7–34.

996 Kajtár, E. (2015) ‘Till Facebook Do Us Part? Social Networking Sites and the Employment Relationship’, Acta Juridica Hungarica, 56(4), p. 269.

183 Section 1: New forms of employment

291. New forms of employment. In its Digital Single Market Strategy for Europe, the European Commission recognized that ICT, and amongst them Internet and digital technologies have a fundamental effect on the lives of individuals – including the world of work as well.⁹⁹⁷ As a response to the changes occurring due to societal and economic factors, Eurofound published a report⁹⁹⁸ in 2015 adressing new forms employment,⁹⁹⁹ which have increased importance nowadays. The expression “new forms of employment” refers to cases when the number of employer and employee differs from the usual (the usual is considered to be 1:1), when the work is not performed on a regular basis, when it implies increased networking and cooperation between self-employed, when it is not performed from the employer’s premises or when the use of ICT is strong and widespread.¹⁰⁰⁰ Among these new forms of employment ICT-based mobile work¹⁰⁰¹ and crowdworking¹⁰⁰² have high relevance to the subject of the thesis, as they are characterised by the use of ICT technology – being conducted anywhere and anytime, regardless of time and place.¹⁰⁰³

292. The report acknowledged the advantages of these forms of employment and identified the main challenges that they represent. With regard to privacy, in relation to the use of ICT, on the one hand it was recognized that they provide more flexibility and improve the work-life balance of employees, through enabling them to perform work when

997 European Commission (2015) Digital Single Market Strategy for Europe. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM(2015) 192 final. Brussels, p. 3.

998 Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound.

999 In the report Eurofound identified and examined nine types of “new forms of work”. These are: employee sharing, job sharing, interim management, casual work, ICT-based mobile work, voucher-based work, portfolio work, crowd employment and collaborative employment.

1000 Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, pp. 4-5.

1001 The report identifies ICT-based mobile work as referring to “[…] work patterns characterised by the worker (whether employee or self-employed) operating from various possible locations outside the premises of their employer (for example, at home, at a client’s premises or ‘on the road’), supported by modern technologies such as laptop and tablet computers. This is different from traditional teleworking in the sense of being even less ‘place-bound’.” Source: Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, p. 7.

1002 The report refers to crowdworking as a not place-bound form of employment, where “[v]irtual platforms match a large number of buyers and sellers of services or products, often with larger tasks being broken down into small jobs.” Source: Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, p. 7.

1003 Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, p. 72.

184 it is the most suitable for them.¹⁰⁰⁴ However, on the other hand, it was also recognized that implications on the boundaries of work and private life can occur as well, manifested for example in the requirement of being always available.^{1005, 1006}

293. These issues were also addressed by the European Commission’s European agenda for the collaborative economy,¹⁰⁰⁷ which notably raised the question of what effects collaborative economy¹⁰⁰⁸ has on the boundaries of employment and in accordance with what criteria the existence of an employment relationship can be established.¹⁰⁰⁹ The report entitled Working anytime, anywhere: the effects on the world of work, published jointly by the ILO and Eurofound,¹⁰¹⁰ examined the effects that the use of ICT for work purposes exercises on the world of work outside the workplace.¹⁰¹¹ It emphasized that such work can represent advantages both for employers and employees, for example, regarding work-life balance, creating new jobs, contributing to economic growth, etc.¹⁰¹² With regard to the main subject of the dissertation, one of the main driving forces of ICT-based work is

1004 Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, pp. 76-77.

1005 Mandl, I. et al. (2015) New forms of employment. Publications Office of the European Union, Luxembourg: Eurofound, p. 79.

1006 Since then, the report was updated in 2018. In this document problems relating to supplementary working time (e.g. working during nights or weekends) was identified as one of the most challenging aspects of ICT-based mobile work.) Source: Mandl, I. and Biletta, I. (2018) Overview of new forms of employment – 2018 update. Publications Office of the European Union, Luxembourg: Eurofound, p. 11.

1007 European Commission (2016) A European agenda for the collaborative economy. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM(2016) 356 final. Brussels.

1008 In the agenda collaborative economy is defined as “business models where activities are facilitated by collaborative platforms that create an open marketplace for the temporary usage of goods or services often provided by private individuals.” Source: European Commission (2016) A European agenda for the collaborative economy. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM(2016) 356 final.

Brussels, p. 3.

1009 European Commission (2016) A European agenda for the collaborative economy. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions COM(2016) 356 final. Brussels, pp. 11-13.

1010 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office

1011 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 1.

1012 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 9. Moreover, the report addresses several areas where the use of ICT might have a considerable impact on working conditions. These include working time, individual and organisational performance, work–life balance and occupational health and well-being.

185 flexibility and the better work-life balance that can be constructed through it.¹⁰¹³ However, while ensuring flexibility, ICT can also contribute to the expansion of working hours,¹⁰¹⁴ which can have detrimental effects on the separation of work and private life, as well as on availability and on the consequences associated with it.¹⁰¹⁵ In relation to work-life balance,1016, 1017 the report found that controversial results were observed in countries participating in the report: while certain ones stated that their work-life balance improved due to ICT, others (or even the same individuals) also reported negative effects due to the blurring of the boundaries.¹⁰¹⁸

294. Occupational health. Working with ICT can have consequences for occupational safety and health.¹⁰¹⁹ The health of the employees can be detrimentally influenced not only by physical risks: working conditions, such as work intensity or work duration, also play an important role with respect to the employees’ health. While having the possibility to work beyond working hours can have positive effects through increasing employees’ autonomy, it can also cause detrimental health issues to employees.¹⁰²⁰ ICT also exercise important effect on workplace safety and health, particularly by resulting in

1013 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 9.

1014 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 21.

1015 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 23.

1016 In its Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU the EU recognized the importance of work life balance manifested in the reconciliation of work and family life. Although it constitutes an important step, the directive focuses on gender equality of those who are parents or carers and does not address the question of how the reconciliation should be done with regard to ICT in general.

1017 The European Pillar of Social Rights (European Pillar on Social Rights (2017). Publications Office:

Luxembourg.) also determines the principle of work-life balance through declaring that “[p]arents and people with caring responsibilities have the right to suitable leave, flexible working arrangements and access to care services. Women and men shall have equal access to special leaves of absence in order to fulfil their caring responsibilities and be encouraged to use them in a balanced way.”

1018 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 29.

1019 In addition to its effects on employees’ health, it was also observed that a better work-life balance can increase mental well-being and engagement in the job (resulting in a better workforce) and thus has advantages both for the employer and for employees. Source: Wilkens, M. et al. (2018) Striking a balance:

Reconciling work and life in the EU. Publications Office of the European Union, Luxembourg: Eurofound, p.

2.

1020 Kubicek, B. et al. (2019) Working conditions and workers’ health. Publications Office of the European Union, Luxembourg: Eurofound, pp. 15-16.

186 stress due to the blurred boundaries and constant availability for work.¹⁰²¹ According to the European Working Conditions Survey, performing work beyond the regular working hours can increase employees’ autonomy, but at the same time makes employees more exposed to work-related health issues.¹⁰²²

The importance of ensuring adequate rest period is guaranteed by different international documents, such as the CFREU,¹⁰²³ the CoE’s Revised European Social Charter¹⁰²⁴ or the EU’s European Pillar on Social Rights.¹⁰²⁵ Also, within the EU, notably the Working Time Directive¹⁰²⁶ must be mentioned, which has the aim of laying down minimum safety and health requirements for the organisation of working time.¹⁰²⁷ However, this aim might be compromised due to the constant availability of employees and its effects on the boundaries of work and personal life, raising important questions with regard to occupational safety and health. Although the significance of this issue is recognized, the dissertation will not deal with it in detail for reasons of space limitations, as this subject is indirectly connected to the main focus of it.

295. Technology has not only blurred the lines between professional life and personal life, but also made the boundaries of the employment relationship itself porous, challenging the concepts of wage earners, subordination, occupational safety and health etc.¹⁰²⁸ Standard employment seems not to be the norm anymore.¹⁰²⁹ Platform work,¹⁰³⁰

1021 Eurofound and International Labour Office (2017) Working anytime, anywhere: The effects on the world of work. Joint ILO–Eurofound report. Luxembourg, Geneva: Publications Office of the European Union, International Labour Office, p. 36.

1022 Kubicek, B. et al. (2019) Working conditions and workers’ health. Publications Office of the European Union, Luxembourg: Eurofound, p. 16.

1023 Article 31 on fair and just working conditions stipulates that: “1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”

1024 See Article 3 on the right to safe and healthy working conditions

1025 Declaring workers’ right to healthy, safe and well-adapted work environment.

1026 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time. Article 3 stipulates that “Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.”

Article 5 stipulates that “Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.”

1027 Article 1 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time

1028 Bidet, A. and Porta, J. (2016) ‘Le travail à l’épreuve du numérique’, Revue droit du travail Dalloz, (5) p.

328.

1029 International Labour Office (2015) World employment and social outlook 2015: The changing nature of jobs. Geneva: ILO. p. 13. and ILO (no date) The Future of Work We Want: A global dialogue. Available at:

http://www.ilo.org/wcmsp5/groups/public/---dgreports/---cabinet/documents/publication/wcms_570282.pdf (Accessed: 16 May 2018) p. 8

187 clickworking¹⁰³¹ and crowdworking¹⁰³² challenge the existing concepts, and at first sight they might seem to escape from the scope of the employment relationship.1033, 1034 As the existence of an employment relationship does not depend on the will expressed by the parties or on the designation the parties gave to their agreement but on the conditions in which the activity is performed,¹⁰³⁵ it must be carefully analysed whether the conditions in order to qualify as an employment relationship are met.¹⁰³⁶

296. Although analysing whether these new forms of work qualify as employment or not raises several interesting questions, its analysis would be beyond the scope of the dissertation. The dissertation focuses on how the boundaries of personal life and professional life are blurred, and not on the blurred boundaries of employment. For the main subject of the thesis the emphasis is put on how (prospective) employees’ right to

1030 “Platform work is an employment form in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services in exchange for payment. Source: Platform work (2018) Eurofound. Available at:

https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/platform-work (Accessed: 13 August 2019)

1031 They are “digital laborers who perform micro tasks via the platforms with the unique, main or secondary aim to receive an income or additional income.” Julien, M. and Mazuyer, E. (2018) ‘Le droit du travail à l’épreuve des plateformes numériques’, Revue droit du travail Dalloz, (3) pp. 195-196.

1032 “[Crowdworking] refers to a form of work done by a “crowd” via a digital intermediary based on the outsourcing of activities, with piece rate payments. It is about calling a multitude of persons to do a task, the crowdworkers offering their labour force.” Julien, M. and Mazuyer, E. (2018) ‘Le droit du travail à l’épreuve des plateformes numériques’, Revue droit du travail Dalloz, (3) p. 190.

1033 Julien, M. and Mazuyer, E. (2018) ‘Le droit du travail à l’épreuve des plateformes numériques’, Revue droit du travail Dalloz, (3), p. 191.

1034 For example, in the case of platform work, at first sight it is the client who gives orders, evaluates and controls the service, fixes the price, etc. while the platform “only” ensures a place to make the deal between the parties. The worker is free to accept or decline work. However, Mathilde Julien and Emmanuelle Mazuyer argue that these are just appearances and further analysis of the real conditions of the execution of the relationship is needed in order to apprehend the true role of platforms. Source: Julien, M. and Mazuyer, E. (2018) ‘Le droit du travail à l’épreuve des plateformes numériques’, Revue droit du travail Dalloz, (3), p.

191.

1035 Cour de cassation, chambre sociale, du 17 avril 1991, 88-40.121 (See more on this case in: Champaud, C.

and Danet, D. (1992) ‘Société en participation. Eléments constitutifs. Distinction du contrat de travail’, RTD Com., (1), pp. 196–196.); Cour de cassation, chambre sociale, du 19 décembre 2000, 98-40.572 (See more on this case and on the qualification of the employment contract in: Jeammaud, A. (2001) ‘L’avenir sauvegardé de la qualification de contrat de travail: à propos de l’arrêt Labbane’, Droit social, (3), pp. 227–238.);

BH2005. 102; 7001/2005. (MK 170.) FMM-PM együttes irányelv a munkavégzés alapjául szolgáló szerződések minősítése során figyelembe veendő szempontokról

1036 For example, in November 2018 the Court of Cassation pronounced that a subordinate relationship was present between the delivery person and the “Take Eat Easy” society, and characterised the delivery person’s contract as employment contract. (Cour de cassation, civile, chambre sociale, 28 novembre 2018, 17-20.079) In January 2019 the Court of Appeal of Paris ruled that there is an employment contract between an independent driver and between the platform Uber. (CA, Paris, Pôle 6, chambre 2, 10 Janvier 2019, n°

18/08357) Also, in California, an Uber driver was qualified as an employee instead of being qualified as an independent contractor. (Superior Court of California, County of San Francisco, Uber Technologies, Inc., A Delaware Corporation vs. Barbara Berwick, CGC-15-54378, 2015)

188 privacy and to data protection can be protected on SNSs, and not on who is considered to be an employee.¹⁰³⁷

Section 2: “ATAWAD”: AnyTime, AnyWhere, AnyDevice – eroding physical boundaries of the workplace

297. ATAWAD. The blurring of the boundaries between professional and personal life can be effectively described by the acronym of ATAWAD (also a registered trademark by Xavier Dalloz since 2002) referring to a connection possible from AnyTime, AnyWhere, AnyDevice.¹⁰³⁸ In accordance with the three aspects included in this expression, the blurring of boundaries will be presented through these three interconnected aspects, which were all shaken by technological advances: place of work, working hours and equipment used for work. However, as a preliminary point it must be emphasized that this phenomenon is mainly relevant for employees performing office work, and especially knowledge work.^{1039, 1040}

§1. “Any time”: working hours

298. To put it simply, earlier, working time was easy do determine by the place of the employee: when the employee was in the workplace, he/she had to work, but when he/she was at home (or outside the workplace) he/she was not working. However,

1037 On this subject see more in: Desbarats, I. (2017) ‘Quel statut social pour les travailleurs des plateformes numériques ? La RSE en renfort de la loi’, Droit social, (11), pp. 971–983; Gomes, B. (2016) ‘Le

1037 On this subject see more in: Desbarats, I. (2017) ‘Quel statut social pour les travailleurs des plateformes numériques ? La RSE en renfort de la loi’, Droit social, (11), pp. 971–983; Gomes, B. (2016) ‘Le