24 Mar Digital platforms and COVID-19 ¿What is next?
by Carlos Esguerra y Fery Cure
Prior to the world focusing 100% of its attention on the challenge of COVID-19, Colombia was in the middle of a big debate about the need of regulating digital platforms such as Uber, Rappi and Airbnb.
Given the circumstances, this debate has taken a step back, although it should not. In reality, today more than ever, we should ask ourselves which is the safest and most efficient way for citizens to mobilize themselves, buy their groceries and likewise products, access delivery services and find accomodations.
In this context, digital platforms play a fundamental role. For example, one frequently hears reports about people that have recurred to Airbnb to find accommodations in places where they have been trapped due to the isolation measures adopted by governments across the world (See Miami Herald, The San Diego Union Tribune and Stuff).
Similarly, in a recent interview for Portafolio (see here), Matías Laks (Manager of Rappi Colombia) explained that they have been working in collaboration with municipalities in various cities of the country with the purpose of “prioritising the supply and security of the population”. In fact, “Rappi orders have incremented in almost 40%” since the beginning of the COVID-19 emergency.
The National Government and the Mayor’s Office of Bogotá have not been indifferent to the situation, and have exempted digital platforms and the distribution chain of first necessity goods – food and drug deliveries – from the isolation measures adopted to control de expansion of COVID-19 (see Decree 457 of 2020 and Decree 090 of 2020). Furthermore, the Ministry of Information and Communications Technologies (MinTIC) recognized the relevance of e-commerce during this time, by establishing that the delivery of certain products should be prioritized:
“Article 3. E-commerce. During the state of economic, social and ecological emergency, companies that provide e-commerce services, deliveries and logistic operators should give priority to the delivery of products and services requested on-line comprised of food, beverages, first necessity goods and services, pharmaceutical products, medical products, optical shops, orthopedic products, cleaning and personal hygiene, food and medicine for pets and from terminals that allow access to telecommunications (cell phones, computers, tablets, TVs).” (see Decree 464 of 2020)
However, it cannot be ignored that the use of those platforms may generate certain risks and that it is everyone’s job, especially of these companies, to identify and mitigate them. Nevertheless, it is clear that, in the current situation the model of digital platforms may contribute to the effectiveness of the isolation measurements and it appears that the National Government, local governments and citizens are committed to getting the most benefit from the facilities and efficiencies that digital platforms can offer.
Once we overcome this situation, and the Congress of the Republic resumes its debates, it is crucial that the role of digital platforms during the crisis and, its relevance in the post COVID-19 scenery, are taken into account for the debates regarding the bills which are in course. IN the remanining sections of this post, we review some these bills.
Bill 292 of 2019 (House of Representatives) “By means of which the private transport service intermediated by digital platforms is regulated” (see here).
Purpose: To create a legal framework for the provision of the private service of individual transport when it is intermediated by digital platforms.
- The creation of the Unique Registry of Private Intermediated Transport Service.
- The obligation of intermediation platforms operators of constituting non-contractual civil liability policies (to cover, among other things, deaths, labour disabilities and injuries), as well as insurance policies for drivers (covering risks such as death or labour disability caused during work).
- The obligation of operators to build a branch office or corporate entity.
- The tariffs paid by passengers will constitute taxable income.
- The creation of a contribution corresponding to the 1% of the invoice value by operators intended for the Quota Compensation Fund, whose aim is the gradual dismantlement of the quota assignation in the public service of individual transport.
- The obligation for the Ministry of Transport of modernizing the individual transport public service regulation.
Bill 296 of 2019 (House of Representatives) “By means of which work in digital settings is protected by regulating the contracting of independent collaborators through Digital Platforms of Collaborative Economy ” (see here)
Purpose: Establishing the contractual regulation of those who provide services through digital platforms, allowing the access to the Social Security System, among other things.
- Establish the concept of “independent collaborator” (natural persons that provide consumer services through digital platforms, in an autonomous and independent manner, in their own name and with their own resources).
- The nature of the established relation between the platform and independent collaborators is civil or commercial, according to what is determined by the platforms in their terms and conditions. These should establish, as a minimum, the code of conduct, rights and obligations between the parties in their various relationships, the processing of the data and the terms of service, among other things.
- Independent collaborators should be affiliated to the social security system in an independent condition or simultaneously as dependents.
- Collaborators must assume the affiliation and contributions related to health and pensions (the platform may retain the respective amount), while the platform must assume the affiliation and contribution to labor risks.
- The obligation for platforms to acquire insurances that cover the risk of personal accidents and the loss of income derived from the loss or theft of the tools needed for the provision of services.
Bills 190 of 2019 (Senate) and 160 of 2019 (House of Representatives) “By means of which is regulated the economically dependent digital work made through digital intermediation companies which make use of digital platforms in Colombia” (see here)
Purpose: To regulate work undertaken through digital platforms.
- Establishes the concept of “economic dependent digital work” (relationship between intermediation companies and digital workers, that does not correspond to a work contract or to a services contract)
- The relation can be occasional or constant, and exclusivity cannot be required.
- Digital workers will be proprietors of the ratings of consumers.
- Companies cannot: 1. Assign in a compulsory manner a client to the worker; 2. Limit the access to the work offer on the grounds of the number of services provided; 3. Exercise control regarding the way the digital worker provides the service, without prejudice of the minimum quality service standards.
- Workers must affiliate and make their contributions to the social security system in proportion to the company (50% each).
- The creation of syndicates of digital workers and intermediation companies will be allowed.
We must warn that from the aforementioned bills, just one (Bill 190 of 2020- Senate) is ready to be discussed for the first debate at the Seventh Commision of the Senate, while the date for their debate has not been scheduled.