None of Your Business (‘NOYB’) announced, on 14 March 2021, that an appeal by Max Schrems and Facebook Inc. against a judgment of the Higher Regional Court of Vienna had reached the Austrian Supreme Court. In particular, NOYB highlighted that one of the main elements of the case was Facebook’s alleged circumvention of the consent rules under the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’) in respect to its personalized advertising.

More specifically, Max Schrems posited that Facebook had included ‘personalized advertisement’ in its terms and conditions, and that sought to process data for personalized advertisement on the basis of fulfilling a contractual obligation to its users, without having obtained their prior consent. Further to the same, NOYB highlighted that consent should be distinguished from a contract, noting that, unlike the strict GDPR rules for consent and its withdrawal, contractual obligations are a matter of national law, and that, in the present case, Facebook users could not have understood the terms as a binding contract. In addition, NOYB stated that the lower courts had found that it is up to Facebook’s discretion to treat a term as ‘contract’ or ‘consent,’ and that the current appeal asks the Austrian Supreme Court to clarify the issue and refer the matter to the Court of Justice of the European Union.

You can read the press release here