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Under article 7 GDPR [1], consent has to be given freely. Unless Facebook offered an option to opt-out of this contract, use of the Facebook service was tied to the agreement, which means it probably won't hold up. It's great that this is happening in front of an Austrian court, because the Austrian Data Protection Agency already has ruled on consent issues, and in those rulings was (IMO) extremely strict on when consent was given freely. In one ToS challenge, the mere potential for confusion was enough to render it invalid. Edit: Here's one such ruling [2]. Co-mingling checkboxes for processing of data for marketing purposes with actual contractual clauses was ruled as a violation of the GDPR, even though by default, the checkboxes were unchecked. The Agency ruled that the confusing nature of the form could lead subjects to believe that they had to check a checkbox to receive the service. Also, another relevant local case would be with a popular national newspaper, DerStandard.at. That newspaper offers access in two ways: either (a) you pay for a subscription and receive the service ad-free, or (b) you access the service for free, but consent to receiving ads. This was deemed in compliance with the GDPR, but it was stated that only offering (b) -- ie, exactly what Facebook does -- would not hold up. [1] https://gdpr-info.eu/art-7-gdpr/ [2] https://www.ris.bka.gv.at/Dokumente/Dsk/DSBT_20180731_DSB_D2... |