Can organized labor and the threat of lawsuits force YouTube to treat users more fairly? The YouTubers Union, which last week joined forces with Europe’s largest trade union, hopes so. The group is pushing YouTube to be more transparent in decision-making—and arguing that the company’s current practices violate data privacy laws.
It’s an unconventional approach. The trade union, Germany’s IG Metall, has a lot of political power, but the YouTubers Union is more of a Facebook-organized “internet movement” than a traditional union, says its founder, Jörg Sprave. Members don’t pay dues, and YouTube hasn’t recognized it. Some of its legal claims are overstated. But the new collaboration, called FairTube, could still generate a lot of public pressure and mark a change in how YouTube interacts with its content creators.
The problem, according to Sprave—whose YouTube channel about slingshots has over 2 million subscribers—is that many content creators like him rely on YouTube for their incomes, but the company doesn’t take this into account when making big decisions. For example, it can change rules on how it de-monetizes videos, handles copyright disputes, or serves content warnings, and the creators are powerless. As a result, FairTube is demanding that, among other things, all decisions that affect monetization be transparent. It also wants the company to explain individual decisions regarding videos and channels, and for creators to be able to contest decisions affecting them.
FairTube has given YouTube until August 23 to respond. Its hope is that YouTube will agree to the demands on its own. If not, FairTube will bring in lawyers to discuss data violations and employee rights.
Running afoul of GDPR
YouTube collects data on uploaded videos, often to categorize them. Because users don’t have access to how this data is used, FairTube claims that this practice violates GDPR, the European data protection law adopted in 2016.
The foundation of this argument is solid, says Lilian Edwards, an internet privacy expert at Newcastle Law School. Under GDPR, people have a right to both access and have a copy of the data that companies keep on them. In fact, she adds, GDPR even says users have the right not to be subject to a wholly automated decision that uses personal data and might have significant effects.
Michael Six Silberman, the political officer of IG Metall, says the union is in conversation with “various European institutions” that are involved with implementing GDPR. “Hopefully we can avoid going to court,” he says. “These cases are generally not fast to resolve.”
Are YouTubers employees?
FairTube also argues that because of the enormous power YouTube has over creators, they should be considered employees and enjoy the protections of employment law. Similar debates have centered around whether other gig workers, like Uber drivers, are employees or just contractors. There’s a lot at stake: if the creators are employees, YouTube would be responsible for benefits like vacation, minimum wage, severance, and more.
A YouTube spokesperson said that creators are not legally employees. Björn Gaul, a partner at the German law firm CMS, agrees. Under German law, an employer gives explicit instructions regarding when someone works and what they do. YouTube can’t do that. Its creators are more like freelance writers or contractors, in this view. (Uber is a messier case, according to Gaul, because Uber can make demands on how the car is prepared and how the driver behaves while driving or waiting.) “From a legal point of view, I do not have any doubt they are not employees,” Gaul says.
And yet, because YouTube dominates the online video market, self-employed YouTubers are often economically dependent on it, whereas freelancers typically have several sources of income. It’s unlikely that IG Metall can redefine the actual employment status of YouTubers, but it might push forward a conversation on treating contractors fairly, Gaul says. That’s an important discussion to have, because there are more self-employed workers than ever.
Sprave agrees. The group is not really fighting to get all YouTubers recognized as employees, he says. It’s a tactic to get YouTube’s attention and ultimately make it treat creators more like partners. ”You don’t change the rules without talking to your partners first,” he says. “That’s ridiculous.”
Though FairTube is making its case by leaning on the EU’s strong worker-protection laws, Sprave says that in negotiations “we would make sure the changes apply globally.” If the company doesn’t play ball, Sprave says, the next step will be legal action and other types of public pressure—or what he calls “a shit storm.”
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