“Nobody’s really regulating it!” – an interview with Thelma Efua Quaye & Funda Ustek-Spilda

What is agile regulation? Earlier, a regulation always was considered being rigid, fixed.

Thelma Efua Quaye: Traditionally our regulation has been industry led with the private sector taking the market lead well ahead of regulation.. Additionally, the mindset of traditional regulation is more rigid and punitive. And so the concept of agile regulation comes in to support the two challenges of being able to understand the market for regulation, while supporting innovation and transformation iteratively. Agile regulation helps to change the lag for our regulators to be at par with innovation based on the current happenings – and creates a more progressive environment rather than a punitive one.

Funda Ustek-Spilda: I agree with this, but I think there are two words to consider here. One is agile, which is a very industry word. The startup world has been using the term agile for nearly two decades now, and it’s a new concept that is bringing together this sort of startup concept of agile, moving fast, fixing things. And, in addition to what Thelma said, there’s a bit of that in this concept as well. Regulation takes a really long time. Usually, it’s decades for any sort of labor law or any kind of code to emerge. Whereas in the gig economy context, what we’re seeing is that the current regulation, the current regulatory system for labor is not really answering to the kind of new forms of work that is emerging with the increasing digitalization of work. So agile regulation is really a response to that. Hence, the question is: How can we transform what we have now in a faster fashion, in a bit more adaptive fashion than before.

Because it’s necessary?

Funda Ustek-Spilda: It is necessary because increasingly we are seeing lots of risks. Risks to physical mental health of people working in a digital industry, in a gig economy context, and for them to be protected against the harms and risks. Regulation is necessary.

What role can the gig economy play on the African continent?

Thelma Efua Quaye: The employability rate is quite low, but also we have a lot of informal work that happens in Africa and the gig economy helps us to formalize a lot of these informal work that is already ongoing. Furthermore, it also creates the opportunity for more others to engage in an economic activity, but also through the digital. Covid also happened and we saw the use of some of these gig economy. So for us, it helps us mainly to reduce the employment gap.

And where do you see the dangers?

Thelma Efua Quaye: The dangers are in the vulnerability of the workers. For instance, the labor law, which is quite lax could potentially put the workers, many of whom may not necessarily have high education, at risk. The second danger is how the large amounts of data, that are created within the gig economy, are used. While individual countries in Africa have various data protection laws and regulations, a harmonised one for the continent is still in the works. And without a harmonised regulation, the risk of data misuse, data breach, cyber threats is quite difficult to handle, seeing that most providers of the gig economy, may not be physically within the boundaries of the various jurisdiction. The third danger is the fact that the gig economy is a new and changing landscape, with no clear understanding of how it will change in the years to come, and no way of regulation. This in itself presents some regulatory risks that we are yet to uncover.

Funda Ustek-Spilda: The race to the bottom is a particular risk in the gig economy. And what I mean by this is that if conditions are working, conditions like pay safety, protections against harms, or representation of workers and their management on the job, these are left to their own demise. It is a risk that we will be seeing a race to the bottom because it will be basically, whatever model business or operation model is the most competitive one. And usually those do not feature fair working conditions. I mentioned mental risks for online workers, but there are actually physical risks for people working on location platforms: bike accidents or car accidents, theft, robbery, sexual harassment, physical harassment, workers being held at the gunpoint. Workers experienced them in Africa and everywhere in the world. And platforms can provide protections against these. But also regulation can hold the platforms accountable to protect the workers against these kind of risks.

So how can we manage to become proactive in this process? What needs to be done?

Funda Ustek-Spilda: There are lots of options. There are organizations, research projects like ours which aim to hold the platforms accountable to the working conditions that they have on the platforms. People and regulators and other interested stakeholders in this can look at our ratings and look at our studies reports to understand how specific platform economy contexts are taking place in different countries and with different platforms. There’s a lot of emerging regulatory attempts in many countries, like in Spain, Chile and Italy. There are important court cases to definitely follow such as the US, the UK Supreme Court ruling over Uber. And there’s also the important worker voice. Increasingly we are seeing workers collectivizing, organizing in this space, especially during COVID. We have seen an increasing number of workers coming together to highlight the kind of the working conditions that they experience.

Are you as optimistic as Funda?

Thelma Efua Quaye: Yes. Beyond holding the platforms accountable, from my perspective, we also need to capacitate our regulators, the regulators in various domains. You would find out that now there are many regulators working in isolation. The regulator in telecom or in digital works very separately from the regulator in transport. We need to bring these different regulators together, to be able to share data, which is something we are working on through our initiative, the Smart Africa Trust Alliance. If that trust framework is present, then we can bring several regulators together. They will begin to talk, and they can work collaboratively. The other thing we are trying to do is also to put in place regulatory sandboxes within the scope of our capacity building Because the gig economy presents a lot of unknown, and there is the need to create the knowledge base around the topic and assist the policy creation through a testing approach. . And that the regulatory sandbox environment helps to test their ideas and in that case become more agile in their regulation. And then finally, also for the workers, there’s a need to create the awareness what is their rights, and then things like basic cybersecurity awareness so that they are aware also because beyond the race to the bottom, a point that Funda had mentioned, there’s also the threat of cyber security.

Funda Ustek-Spilda: I don’t know if my response was overly optimistic. Certainly, I did not intend to either be optimistic or pessimistic with this. What I rather meant is that there are things happening and there are voices emerging. And the concerns we have about the current conditions in the gig economy is widely shared by a variety of stakeholders, and it’s good to give voice to all of them. I completely understand the need for capacity development and knowledge sharing in this space. GDPR is definitely a good example, but there can be others because there are so many unknowns about the data use data collection and data protection in this space and how that data is being handled. Usually the response is: Okay, we can give workers their own data and they can take it back. But the solutions are not as simple. When we’re talking about data issues, data management, data privacy, data protections, we really need to think a bit more holistically about what can be really the answer to provide the protections and the security to the workers that they need.

What do we mean with holistic? I mean, what are the dimensions we are talking about?

Funda Ustek-Spilda: Holistically, education is definitely one thing, but the other one is really understanding what happens with that data, how it is kept, what it is, what happens to it. We know that some platforms for instance use or they try new digital tools that perhaps would not be possible to try in the global north or where there are sort of digital regulation, digital protection regulations are in place. But these are being tried in countries where there are no such protections. So when such tools are being developed, perhaps it would be good to consider why they would not be okay to be tested in a global north country, but it’s okay to test it somewhere else where those kind of regulations are not in place. One question is definitely: Just because we can build that digital tool doesn’t mean that we really should build it. Should that really work? This is one question to make it holistically. And the other one is if workers do not want to use those tools or do not want to be part of that kind of data collection systems, what kind of support systems could we offer them so that they can still continue to work there, continue working on their jobs and their access to the platform is not severed, but they can also have a voice in being able to say no to at least some of the some of the tools.

Do you both think that countries across the continents can learn from each other in terms of regulation legislation?

Thelma Efua Quaye: Definitely. We are already doing that, especially when it comes to data protection, which is a core thing in the gig economy. I always say that the GDPR is very European in the sense that it really protects the people. We in Africa do need a GDPR, but probably not in that same sense. And so we need to find our way that we are able to protect the people, but also encourage the big techs into Africa because we also have a huge problem of employment while not also giving out our data on a silver platter. So this is something that we are definitely taking lessons from, learning from Europe as a continent led by Estonia. Our philosophy is to learn what went wrong more than what went right because we know what we want to do, but we do not want to fall into the holes that others have. And so we have the advantage of taking those learnings and we’re happy to do that.

Funda Ustek-Spilda: Learning from the current examples is a way to identify the gaps, how it can be adapted to the local context and how it can be improved. The current regulations that we see, and this includes the GDPR, they are important, but there are still some issues that we can consider and learning from each other, regionally and globally would just make things better.

And do you think that bans could have the risk of hampering progress?

Funda Ustek-Spilda: I don’t think so. There is this idea that regulation impedes digitalization or it can block transformation or creation, innovation. But at the same time, we need to understand that there should be at least basic minimum that we should all have access to basic dignity, basic decent working conditions. And this means that there should be benchmarks in terms of innovation. This doesn’t mean that we can’t innovate, it just means that we need to innovate in a smart way. We need to innovate in a way that it’s not harmful to humans, it’s not harmful to the environment and the world in general. I would just reframe that question and make it more like, how can we think about innovation in a more holistic way, in a way to ensure that all these rights that we have fought for over the centuries, they’re just not forgotten about just because we are thinking about a different kind of work system, different kind of arranging, operating and managing work.

When we look into human history, innovation was always taking place. It was always faster. Technical progress was always faster than the humanistic progress. What we are talking about is kind of an evolving landscape. How can we navigate there? I mean, are we always behind? Are we always lost?

Thelma Efua Quaye: I think it’s going to be like this for some time. And that was the point of agile regulation. Again, from the lens of regulation, we have been quite rigid. We have not been innovative and we have been more in a passive mode. The answer to being ready for this kind of evolving landscape is to be agile, is to be data driven, is to be flexible. And that’s what we are trying to push through our agile regulation capacity building to support innovation and adaptable regulation.

And how can policymakers be supported in navigating these challenges?

Funda Ustek-Spilda: As researchers, we are always happy to share our findings with the policymakers. We’re always happy to have a dialog about what’s actually happening on the ground and provide them with any kind of information. I think it is really important that the dialog between policy makers, between people working in this field is a really open one. And it’s also a mutual one. So we might be studying one thing, but the [kind of information they might need might not be in the same format or in the same sort of category that they are seeking. And only through a dialog we can see if we can answer those questions. And as Fairwork is something we we’re trying to do as much as possible. We have country teams across the world that have direct dialog with the policymakers, with the regulators that are working on draft regulations of the digital sort of platform economy space.

Could you elaborate on capacity building activities that can serve as kind of best practices today and in the future?

Thelma Efua Quaye: In addition to what Funda’s team is doing, we also focus on capacity building. We do take topics in emerging technologies and we curate courses out of them. Of course, these are in partnership with institutions. And we gather policy makers, decision makers across Africa to train them. So far we’ve trained 3500 of them in various topics, including AI, including 5G, big data. But most importantly, we also are looking at the qualitative outcome of this training. We also look at beyond the training: How can we help you to influence the policy making of the blockchain of all those big techs? So what we have done is to create sort of a cohort approach where after training, we handhold you to develop a roadmap towards that policy making. And in case we have any of our partners developing or supporting financially for any of this sort of policies, we involve them and help them to actually curate these courses. So it’s an end to end approach beyond the capacity building to building a roadmap to also developing the policy itself.

Funda Ustek-Spilda: The first question is capacity building for whom? Because there are different audiences and they might have different needs in terms of the kind of resources that they might need access to.

Where do you see and how do you see gig economy in African countries in ten years?

Thelma Efua Quaye: I think gig economy is here to stay. It has the potential to solve a lot of our problems, especially in employment. However, the policymakers and the regulators have to put in place the right things so we don’t have a usage gap of the gig economy as we have a usage gap of the mobile networks. So what we need to do now is to be able to put in place what we have spoken about the rights, data privacy policies and frameworks – so that ten years from now we can 100% get the benefits of the gig economy rather than say: Oh, look, the gig economy is here, but because of this and this and this, we are not able to take full advantage of it.

Funda Ustek-Spilda: I agree. I think in ten years the concept of gig economy might change because these terms come and go but the digital mediation of work is here to stay and it’s likely to increase because as the infrastructure of internet becomes much more widely available, accessing internet is possible from a variety of locations, including currently rural places or remote places where access is still limited, let’s say in some parts of the world, including Africa. And access to digital resources is cheaper, including handsets or other kinds of tablets or laptops or phones and internet. As these costs become lower, the number of people accessing the Internet and accessing resources of work opportunities facilitated or mediated by the digital space is likely to increase. If this would still be called gig economy, I think we will wait and see. I think the important thing to add to this digital mediation work is: The precarization of work, the vulnerabilities that we are identifying in a gig economy is not new. It’s just the digital, it’s the sort of it’s been transferred to the digital space rather. That is the important area where to look at in terms of regulation, how to make sure that we understand the digital mediation of work while at the same time protecting workers against a further precarization at work.