The Supreme Court of Austria (OGH) has given the ECJ presented a series of questions, in connection with proceedings brought by Max Schrems against Facebook. The subject of the proceedings is, among other things, the question of the legal basis on which Facebook processes certain data about Schrems.
In particular, this involves the question of whether Facebook has rightly invoked Art. 6 (1) lit. b DSGVO, the Necessity of the processing for a contract. This question arises because Facebook does not have consent for the processing of data about Schrems, but has stated in the GTC since the GDPR came into force,
By using this wording, Facebook has attempted to clarify that the user pays with his or her data and that the provision of the corresponding data in this sense is just as much a part of the contract as the payment for a product.
However, this is offset by the very restrictive attitude of the EDSA who in his Guidelines for the interpretation of Art. 6 para. 1 b DSGVO argues that it is not the wording of a contract that is decisive, but its objective purpose, which is also to be determined according to the expectations of the data subjects; necessary within the meaning of Art. 6(1)(b) GDPR is only what is objectively necessary for the contract as typified by the EDSA. A mere economic connection between the contract and the data processing is not sufficient, and advertising is not necessary for a contract.
Against this background, the OGH submits the question to the ECJ whether lit. b applies in such a case or whether consent is rather required:
Other questions referred relate to the admissibility of the Usage data analysis before the principle of data minimization and the question of whether data is worthy of special protection are if they provide information about corresponding characteristics (e.g. homosexuality), but the person responsible does not process these data accordingly, i.e. does not differentiate here in the advertising according to such criteria.