Além da subordinação: os remédios de direito privado para os “trabalhadores digitais”

Private Law Protections for “Digital Workers” beyond Requalification – The paper aims to analyse the legal aspects of “digital work”, as including “work on demand via app” and “crowdwork”, from the particular perspective of non-employment law regulations and standards. The breakout of digital work and the “commodification of labour” jeopardise, together with labour law standards, also the truly founding idea that labour is not a commodity. Nonetheless, the “challenge” of digital work may constitute an opportunity for further reflections on the development of protective schemes applicable to all human beings who work, regardless of the legal scheme under which they carry out their activities. In this perspective, the paper aims to verify whether it is useful and possible to search for some protective provisions for digital workers outside the domain of statutory employment law. To this end, after a brief description of the phaenomenon of “digital work” and a comparison between Anglo-American case law and the less open-minded perspective of Italian Law, the paper will try to find out whether it is possible to elaborate some protective schemes for digital workers through the recourse to contract law and selfemployed work regulations. The paper will deal with some critical points (such as the possibility to refuse Amazon Mechanical Turkers’ work without payment, or to “dismiss” an Uber driver for low reputational rates), in order to verify whether outside labour law it is possible to find some protection for digital workers, and, in the affirmative, to what extent. In the perspective of legislative intervention, the paper will focus on the Italian recent law on selfemployed non-entrepreneurial work, on the bill so-called Sharing Economy Act and on some the new provisions of the French Code du Travail. The conclusion will stress out that even moving outside the domain of statutory employment law it is possible to provide “digital workers” with a certain degree of protection.