Judgment — ECLI:EU:C:2024:834
Date: 2024-10-04
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-446/21 – 1 
Case C-446/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 July 2021 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
23 June 2021 
Applicant: 
Maximilian Schrems 
Defendant: 
Facebook Ireland Ltd 
  
Subject matter of the main proceedings 
General Data Protection Regulation – Facebook – General terms of service – Data 
processing – Consent – Personalised advertising – Personal data manifestly made 
public by the data subject – Question of how such data must have been manifestly 
made public 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are the provisions of Article 6(1)(a) and (b) of the General Data Protection 
Regulation (‘the GDPR’) to be interpreted as meaning that the lawfulness of 
contractual provisions in general terms of service for platform agreements such as 
that in the main proceedings (in particular, contractual provisions such as: ‘Instead 
of paying ... by using the Facebook Products covered by these Terms you agree 
EN 
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that we can show you ads … We use your personal data ... to show you ads that 
are more relevant to you.’) which provide for the processing of personal data with 
a view to aggregating and analysing it for the purposes of personalised advertising 
must be assessed in accordance with the requirements of Article 6(1)(a) of the 
GDPR, read in conjunction with Article 7 thereof, which cannot be replaced by 
invoking Article 6(1)(b) thereof? 
2. Is Article 5(1)(c) of the GDPR (data minimisation) to be interpreted as 
meaning that all personal data held by a platform such as that in the main 
proceedings (by way of, in particular, the data subject or third parties on and 
outside the platform) may be aggregated, analysed and processed for the purposes 
of targeted advertising without restriction as to time or type of data? 
3. Is Article 9(1) of the GDPR to be interpreted as applying to the processing 
of data that permits the targeted filtering of special categories of personal data 
such as political opinions or sexual orientation (for advertising, for example), even 
if the controller does not differentiate between those types of data? 
4. Is Article 5(1)(b) of the GDPR, read in conjunction with Article 9(2)(e) 
thereof, to be interpreted as meaning that a statement made by a person about his 
or her own sexual orientation for the purposes of a panel discussion permits the 
processing of other data concerning sexual orientation with a view to aggregating 
and analysing the data for the purposes of personalised advertising? 
Provisions of EU law relied on 
Regulation (EU) 2016/679 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the processing of 
personal data and on the free movement of such data, and repealing Directive 
95/46/EC (General Data Protection Regulation), in particular Article 5(1)(b) and 
(c), Article 6(1)(a) and (b) and Articles 7 and 9. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The defendant is a company incorporated under the law of the Republic of Ireland 
with its registered office in Dublin, Ireland. It does not have a branch in Austria. 
Facebook is an online platform and content-sharing social network that allows 
users to upload various content (for example, text posts, images, videos, events, 
notes or personal information) and share it with other users depending on the 
settings selected. That content can also be enriched by other users with further 
content (for example by adding comments, ‘likes’ or tags in photos or other 
content). Users can also communicate directly with other users and ‘chat’ with 
them or exchange data via direct messages and emails. 
2 The defendant does not generate any content itself, but receives it, for its services, 
from private and commercial users without paying them for it. It provides its 
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services to its users free of charge and generates revenue by processing user data 
in order to sell advertisers the facility of customised and targeted advertising. In 
addition to relatively static advertising (displayed to every user in the same way), 
the defendant offers ‘personalised’ advertising, which allows the advertiser to 
target specifically individual groups of people (by location, age, gender or 
interests, for example) or even individuals. It therefore offers advertisers the 
opportunity to present their advertisements to a tailored audience. More than 2.2 
billion users worldwide (as of November 2018) have registered with Facebook. 
Companies can also financially support (‘sponsor’) their content so as to ensure 
that it is displayed to more users. 
3 The defendant makes ‘Facebook Business Tools’ available to commercial users. 
Rating and analytics services provided by the defendant allow advertisers to 
determine the effectiveness of their advertising or how users engage with content 
on their websites. The analytics systems use algorithms to examine large volumes 
of data, look for correlations and patterns and draw appropriate conclusions. The 
use of those tools is subject to the relevant terms of service. 
4 Prior to the entry into force of the GDPR, Facebook users gave their explicit 
consent to the processing of their data in accordance with the defendant’s terms of 
service at the time (entitled ‘Statement of Rights and Responsibilities’). Before 
transmitting personal data, potential new users were informed that, by registering, 
they agreed to the Statement of Rights and Responsibilities and that they had read 
the Data Policy, including the Cookie Policy. They could change or withdraw 
their consent at any time by changing their settings, deleting their personal data or 
closing their account. For example, a user could at any time stipulate that the 
defendant could not use the user’s activities on the Facebook service to optimise 
personalised advertisements. 
5 Owing to the full entry into force of the GDPR on 25 May 2018, the defendant 
completely redrafted its previous Terms of Service and data use policies and 
presented them to Facebook users for their consent. After his account had been 
blocked previously, the applicant (actively) accepted the new Terms of Service of 
19 April 2018 by clicking ‘I accept’ in order to be able to continue using 
Facebook. Consent was necessary in order to continue to access the account and 
use the services. 
6 The defendant has set up various tools to enable users to view and control their 
stored data. Those tools do not show all the data processed, but only those that the 
defendant considers to be of interest and relevance to the users. For example, the 
applicant can see in the tools that he has opened an app, visited a website, 
searched for something, bought something, added something to a wish list or 
clicked on an advertisement on Facebook. The tools were created to give users 
access to up-to-date data within – what the defendant considers to be – reasonable 
limits. 
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7 The defendant uses cookies, social plug-ins and pixels. The defendant can 
ascertain the source of visits by means of cookies. Many of the defendant’s 
services cannot be used without activating the cookie function. The defendant’s 
social plug-ins are ‘embedded’ by website operators into their pages. The most 
widely used is the defendant’s ‘like button’. Technically speaking, a ‘window’ 
(iframe) is embedded into a website, and the defendant then fills that window with 
the social plug-in. Each time such websites containing the defendant’s ‘like 
button’ are visited, the cookies stored, the URL of the page visited and various log 
data (e.g. IP addresses, time data) are transmitted to the defendant. In that respect, 
it is not necessary that the user has interacted with (for example by clicking or 
similar) or perceived the ‘like button’. Loading a page with such a social plug-in 
is sufficient for those data to be transmitted to the defendant. 
8 Like social plug-ins, pixels are software that a website operator can integrate into 
the website and that enables relevant information about website users to be 
collected. Pixels are commonly used to help websites measure and optimise 
advertising. For example, when website operators integrate a Facebook pixel into 
their own websites, they can receive reports from the defendant about how many 
people saw their advertising on Facebook and then subsequently went to the 
operators’ own website to make a purchase or perform a certain predefined action. 
9 Users can choose whether to allow the defendant to use data that it receives from 
advertisers and other partners about activity outside Facebook products for the 
purpose of customising advertisements (‘Ads based on partner data’). As the 
applicant did not consent to this, the defendant does not process any of his 
personal data obtained from partners about activities outside Facebook products 
for the purpose of displaying personalised advertising for him. However, the 
applicant’s data obtained via cookies, social plug-ins and comparable technologies 
on third-party websites are stored by the defendant and also used for the purpose 
of personalisation, improvement of Facebook products, ‘to promote safety, 
integrity and security’ and also to offer events to him. 
10 The defendant also uses the data that the applicant provides to it and the data that 
it receives about him as a result of his actions in order to display to him what it 
considers to be relevant personalised content, including personalised advertising. 
This includes the use of the applicant’s age, interests and Facebook usage. It also 
includes the use of information about the applicant’s location in order to estimate 
where he might be in order to display content relevant to his location. 
11 The applicant is also shown personalised advertising on the basis of the ‘Custom 
Audience’ tool. In order to be able to use Custom Audience, an advertiser must 
accept the Custom Audience Terms of Service, which explain that the advertiser 
acts as the ‘controller’ (within the meaning of the GDPR) and the defendant acts 
as the advertiser’s ‘processor’ (within the meaning of the GDPR). 
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12 It is not clear whether, when and in what way advertisers who used ‘Custom 
Audience’ or the other business tools obtained consent from the applicant to 
transfer the data to the defendant within the framework of those tools. 
13 Facebook tracks the applicant’s ‘click behaviour’ and therefore ‘knows’ when he 
interacts with an advertisement or video. The defendant tracks the applicant’s 
mouse movements in order to ensure, for example, that a human and not a bot is 
using the Facebook service. Accordingly, the applicant received the message 
‘You’ve been temporarily blocked’ and was indeed blocked for a short period of 
time because he quickly and/or repeatedly clicked on the ‘Why Am I Seeing This 
Ad’ function. The defendant prevents excessive clicking on certain functions 
because it considers that this is necessary to ensure the security of data. The 
defendant does not use mouse movements to personalise advertising. The content 
of messages is not analysed for the purposes of personalised advertising. 
14 The applicant did not add any sensitive data to his profile. Only his ‘friends’ can 
see his posts on his timeline; his ‘friends list’ is not public. The applicant also 
chose not to allow the defendant to use information from the ‘relationship status’, 
‘employer’, ‘job title’ and ‘education’ fields for the purposes of targeted 
advertising. 
15 The defendant processed the applicant’s personal data (such as his IP address) in 
order to determine and process his whereabouts as accurately as possible (‘last 
location’). In 2011, the defendant stored his exact longitude and latitude when 
calculating his ‘last location’. 
16 The defendant’s data processing does not distinguish between ‘simple’ personal 
data and ‘sensitive’ data. The defendant carried out processing (including in the 
case of the applicant) in relation to interest in ‘sensitive topics’ such as health, 
sexual orientation, ethnic groups and political parties. It is possible to define a 
target group for advertising on the basis of those interests also. 
17 For example, the applicant was shown an advertisement for a politician on the 
basis of the analysis that he was similar to other ‘customers’ who had ‘liked’ that 
politician. The applicant regularly received advertisements targeting homosexual 
persons and invitations to corresponding events, even though he had not shown an 
interest in the specific event beforehand and did not know the venue. Such 
advertisements and invitations were not based directly on the applicant’s sexual 
orientation or his ‘friends’, but on an analysis of their interests. 
18 The applicant commissioned an analysis from which conclusions could be drawn 
from his friends list; it showed that he had done civilian service with the Red 
Cross in Salzburg and that he is homosexual. 
19 The applicant could and can delete (even if he wishes to keep his account) certain 
content, such as messages and photos, from his account by initiating a deletion 
process. This excludes, for example, name and email address and declined friend 
requests and removed friends, which are deleted only when the account is deleted. 
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Old passwords and previous names are not deleted either – at least not before the 
account is deleted. 
20 By ‘deletion’ (in the case of an existing account), the defendant means that the 
data are detached from the account, that is to say, the data are ‘depersonalised’. In 
addition to the possibility of deleting data, there is also the possibility of removing 
and hiding them. A message sent via Messenger can be removed within ten 
minutes. This makes the message invisible to everyone, including the recipient. 
After ten minutes, the message can be removed from the recipient’s own 
messages; the message remains with the recipient. A post by someone else cannot 
be deleted, only hidden. 
21 In the case of old messages or posts, only the individual deletion of each element 
or deactivation of the entire account is possible. The applicant does not want to 
make use of the option to delete his account permanently, because he wants to 
continue using Facebook. 
22 With regard to the deletion of data, the defendant states the following in its Terms 
of Service, in point 3.1: 
‘You can delete content individually or all at once by deleting your account. … 
When you delete content, it’s no longer visible to other users; however, it may 
continue to exist elsewhere on our systems where: 
. Immediate deletion is not possible due to technical limitations (in which case, 
your content will be deleted within a maximum of 90 days from when you delete 
it); 
. your content has been used by others in accordance with this licence and they 
have not deleted it (in which case, this licence will continue to apply until that 
content is deleted); or 
. Where immediate deletion would restrict our ability to: 
. investigate or identify illegal activity or breaches of our Terms and Policies (for 
example, to identify or investigate misuse of our Products or systems); 
. comply with a legal obligation, such as the preservation of evidence; or 
. comply with a request of a judicial or administrative authority, law enforcement 
or a government agency; in which case, the content will be retained for no longer 
than is necessary for the purposes for which it has been retained (the exact 
duration will vary on a case-by-case basis). 
In each of the above cases, this licence will continue until the content has been 
fully deleted.’ 
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23 The defendant states (in its current terms) that it does not initiate a permanent 
deletion of data from the servers until 30 days after the deletion of an account. It 
justifies this on the grounds that a deleted account cannot be reactivated and this 
leads to the permanent loss of content uploaded by the user on Facebook, which is 
why it grants the user a 30-day waiting period to change his or her mind and 
cancel his or her request, whereby, however, once deletion has been requested, the 
user’s personal data are no longer accessible to other users. After the 30-day 
waiting period, the defendant starts the deletion process and the user’s personal 
data are permanently deleted from the defendant’s servers within 90 days, 
whereby the personal data are permanently deleted but the remaining metadata are 
only de-identified and anonymised. After the 90 days, some data may remain, for 
a limited period, in inaccessible back-ups carried out for the purposes of recovery 
in the event of a disaster. 
24 The applicant made personal data public on the website ‘Europe versus Facebook’ 
in the form of sample data, for instance as an example of the ‘last location’ 
function, the GPS data of his university, from where he logged in. The applicant is 
homosexual and also communicates this to the public. However, he did not 
indicate his sexual orientation in his profile. 
25 In the present proceedings, a request for a preliminary ruling has already been 
made to the Court of Justice of the European Union (‘the Court’). Following the 
Court’s judgment of 25 January 2018 in Schrems (C-498/16, EU:C:2018:37), the 
applicant amended the form of order sought by him. With heads of claim 4 to 9, 
the applicant now requests, in essence, that the Court 
– (4) order the defendant to conclude with the applicant a written contract that 
meets the requirements of Article 28(3) of the GDPR, between the applicant as 
controller and the defendant as processor, with regard to the data applications 
operated by the applicant himself via the facebook.com portal for his personal 
purposes (profile, timeline – including likes and comments – events, photos, 
videos, groups, personal messages, friend lists and applications); 
– (4.1.) in the alternative, declare, with effect for the relationship between the 
defendant and the applicant, that an effective contract that complies with 
Article 28(3) of the GDPR does not exist between the applicant as controller 
and the defendant as processor with regard to the data applications operated by 
the applicant himself via the facebook.com portal for his personal purposes 
(profile, timeline – including likes and comments – events, photos, videos, 
groups, personal messages, friend lists and applications); 
– (5) declare, with effect for the relationship between the defendant and the 
applicant, that the applicant’s consent to the defendant’s Terms of Service in 
the version of 19 April 2018 and in the version of 31 July 2019 together with 
the associated data use policies (data policy, cookie policy) and his consent to 
(future) equivalent clauses in terms of service of the defendant (‘tied’ 
declarations of consent) do not constitute effective consent, given to the 
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defendant as controller, to the processing of personal data pursuant to 
Article 6(1) of the GDPR, read in conjunction with Article 7 thereof; 
– (5.1.) in the alternative, declare, with effect for the relationship between the 
defendant and the applicant, that the applicant’s consent to the defendant’s 
Terms of Service in the version of 19 April 2018 and in the version of 31 July 
2019 together with the associated data use policies (data policy, cookie policy) 
does not constitute effective consent, given to the defendant as controller, to the 
processing of personal data pursuant to Article 6(1) of the GDPR, read in 
conjunction with Article 7 thereof; 
– (6) order the defendant to refrain from processing the applicant’s personal data 
for personalised advertising and for the aggregation and analysis of data for 
advertising purposes; 
– (7) declare, with effect for the relationship between the defendant and the 
applicant, that the applicant has not given effective consent to the processing, 
for the defendant’s own purposes, of his personal data which the defendant has 
received from third parties; 
– (8) order the defendant to refrain in the future from using the applicant’s data 
concerning visits to, or the use of, third-party sites (in particular through the use 
of social plug-ins and similar techniques), unless technical data are processed 
solely for the purpose of displaying website elements and the applicant has 
without any doubt freely given his informed and unambiguous consent in 
advance to a specific processing operation (‘opt-in’; for example by clicking on 
a social plug-in); 
– (9) order the defendant to refrain in the future from processing, for the 
defendant’s own purposes, the applicant’s personal data which the defendant 
has received from third parties, unless the applicant has without any doubt 
freely given his informed and unambiguous consent in advance to a specific 
processing operation (‘opt-in’). 
26 By judgment of 30 June 2020, the court of first instance dismissed the action. It 
stated the following: due to his private use, the applicant is not a ‘controller’ 
within the meaning of the GDPR, because the latter does not apply to him. For 
heads of claim 5 and 7, the applicant does not have a legal interest in the 
declaration sought. Nor is the applicant entitled to seek injunctive relief (heads of 
claim 6 and 8 to 10). As an integral part of the service offered by the defendant, 
the personalisation and the personalised advertising result from the Terms of 
Service and the policies linked thereto, which were made part of the contract. 
There is no infringement of Article 9 of the GDPR. The question of whether the 
established invitations to events and advertisements disclosed the applicant’s 
homosexuality can remain open, because the applicant had made it public himself, 
with the result that there is an exception to the requirement to give explicit consent 
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(Article 9(2)(e) of the GDPR). The applicant’s ‘interest’ in various parties and 
politicians reveals only his interest in politics, not a political opinion. 
27 The appellate court did not uphold the applicant’s appeal on the merits, in so far as 
it is relevant to the present case. It stated the following: the contract between the 
parties is a contractual relationship that is not expressly regulated in the Austrian 
legal system, that is to say, it is an atypical contractual relationship. Its content 
consists, in essence, in the fact that the defendant provides the Facebook user with 
access to a ‘personalised’ platform – that is to say, one that is individually tailored 
to his or her interests and settings – on which he or she can communicate with 
other Facebook users. Although the Facebook user does not owe any money for 
the access provided to that forum, he or she tolerates the defendant’s exploitation 
of all the user’s personal data made available to it. The purpose of the processing 
of those data is to send personalised advertising to the user. To that end, the 
defendant does not pass the data of its users on to third parties without their 
explicit consent, but, rather, sends advertising on behalf of advertisers to specific 
target groups which remain anonymous to the advertisers and which it filters out 
from the data. The essence of that Facebook business model is explained in the 
terms and conditions in such a way that any reasonably attentive reader can easily 
understand. The model is neither contrary to accepted principles of morality nor 
unusual. The processing of the user’s personal data is a cornerstone of the contract 
concluded between the parties to the dispute. Therefore, the processing of the 
applicant’s personal data is ‘necessary’ for the performance of the contract within 
the meaning of Article 6(1)(b) of the GDPR. 
28 The applicant lodged an appeal on points of law against that judgment with the 
Oberster Gerichtshof (Supreme Court), maintaining heads of claim 4 to 9. 
Essential arguments of the parties in the main proceedings 
29 The applicant submits the following: even if the defendant now concedes that he 
did not give consent within the meaning of Articles 6 and 7 of the GDPR to data 
processing and bases its processing on the contractual necessity of such 
processing, there is an interest in the declaratory finding sought in heads of claim 
5 and 7, in particular due to the ‘tied’ declarations of consent in the Terms of 
Service. The defendant’s data processing infringes the GDPR in several respects. 
There is a danger of repetition and therefore a right to injunctive relief. In 
particular, despite the fact that a deletion process had been initiated, the data are 
not actually deleted; a search for the applicant’s data would be possible without 
his consent, and data within the meaning of Article 9 of the GDPR would be 
processed without consent within the meaning of Article 7 of the GDPR. There 
are doubts as to whether previously purchased data of the applicant has now been 
deleted and also as to whether the defendant does not have the applicant’s 
biometric data and is tracking his mouse movements. 
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30 The defendant’s partners did not obtain the applicant’s consent to the transfer of 
data to, and/or the further use by, the defendant. The defendant also failed to 
comply with its duty to provide information. 
31 The defendant opposes the form of order sought. It submits that the processing of 
the applicant’s data is carried out in accordance with the agreed policies and 
terms, which are in line with the GDPR. The data processing is lawful and is not 
based on the applicant’s consent within the meaning of Articles 6 and 7 of the 
GDPR, but on other justifying circumstances, primarily on contractual necessity. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
32 Article 6 of the GDPR regulates the cases that justify the processing of data. The 
defendant bases its processing not on the applicant’s consent (Article 7 of the 
GDPR), but on the fact that the data processing is an integral part of the 
contractual purpose of ‘personalisation’ and is necessary for the performance of 
the contract. According to the defendant, the applicant concluded the contract in 
full knowledge of that content, which is why the data processing is permissible as 
long as the applicant does not delete his account and thus terminate the contract 
with the defendant. 
33 According to Article 6(1)(b) of the GDPR, the processing of personal data is 
permitted if it is necessary for the performance of the contract in the broad sense 
(thus including ancillary obligations). The decisive factor is the purpose of the 
contract – which emerges from the content of the contract – and what is necessary 
for the performance of the contractual obligations or the exercise of rights or in 
order to take steps prior to the conclusion of the contract. 
34 The appellate court took the view that the processing of the user’s personal data is 
a cornerstone of the contract concluded between the parties to the dispute. It stated 
that this is because only such use of data enables customised advertising, which 
significantly shapes the ‘personalised experience’ required of the defendant and at 
the same time provides it with the income required to maintain the platform and 
make a profit. Such processing is therefore ‘necessary’ for the performance of the 
contract within the meaning of Article 6(1)(b) of the GDPR. 
35 However, the referring court considers that that view is by no means compelling. 
A core question in the present case is whether the declaration of intent to process 
the data can be subsumed by the defendant under Article 6(1)(b) of the GDPR so 
as thereby to deprive the applicant of the significantly higher level of protection 
offered to him by the legal basis of ‘consent’ (Article 7 of the GDPR). 
36 In its current guidelines on Article 6 of the GDPR, the European Data Protection 
Board (EDPB) proceeds on the assumption that, as a general rule, processing of 
personal data for behavioural advertising is not necessary for the performance of a 
contract for online services (EDPB Guidelines 2/2019, paragraph 52). However, 
in respect of online services, the EDPB acknowledges that personalisation of 
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content may (but does not always) constitute an intrinsic and expected element of 
certain online services, and therefore may be regarded as necessary for the 
performance of the contract with the service user in some cases. 
37 In paragraph 30 of the EDPB Guidelines 2/2019, it is stated in that respect that 
processing under Article 6(1)(b) of the GDPR can enter into consideration only in 
respect of certain obligations under a contract. Merely being ‘mentioned in the 
small print’ is not sufficient. The assessment of ‘necessity’ must take into account 
not only the controller’s perspective, but also the data subject’s perspective. 
Although in that respect the obligations may also include ancillary contractual 
obligations, the storage of data for marketing purposes should not be included in 
this. It is explicitly stated that ‘behavioural advertising is not a necessary element 
of online services’. The legal literature also takes a restrictive position on this. 
38 The objective purpose of the contract is the decisive factor for the interpretation of 
the contract under data protection law and the question of whether data processing 
is ‘necessary’ within the meaning of Article 6(1)(b) of the GDPR. This cannot 
include artificially or unilaterally imposed services. The necessity of data 
processing for the performance of a contract depends on whether there is a direct 
factual connection between the intended data processing and the specific purpose 
of the contractual obligation. Article 6(1)(b) of the GDPR must be interpreted 
narrowly in that respect and does not apply to situations where the processing is 
not actually necessary for the performance of a contract. The fact that the purposes 
of the processing are covered by contractual clauses formulated by the provider 
does not automatically mean that the processing is necessary for the performance 
of the contract. 
39 In the case of the applicant, data on his political beliefs and sexual orientation are 
also processed. He receives advertising for events targeting homosexual persons 
on the basis of an analysis of his ‘interests’ and not his sexual orientation or that 
of his friends. His list of activities includes apps and websites that are targeted at 
homosexual users or operated by political parties. 
40 Article 9(1) of the GDPR provides for a general prohibition on the processing of 
such sensitive data, except where at least one of the cases of Article 9(2) of the 
GDPR applies. Sensitive data includes data on racial and ethnic origin, political 
opinions, religious beliefs or sexual orientation. 
41 Article 9(2)(e) of the GDPR permits the processing of sensitive personal data 
relating to the data subject where the data have been manifestly made public by 
the data subject. The rationale behind the provision is that personal data which 
have been freely made available to the public by the data subject do not pose a 
significant risk to privacy, with the result that they do not require the higher level 
of protection afforded by Article 9 of the GDPR. The provision covers data that 
are freely available on the internet or in public registers and directories that can be 
viewed by anyone or that are disseminated via the media. However, the mere fact 
that data are publicly accessible is not sufficient to dispense with the protection 
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afforded by Article 9 of the GDPR. Rather, the circumstance of the data having 
been made public must be manifestly attributable to an act of will on the part of 
the data subject. 
42 According to the findings, the applicant (voluntarily) communicated his sexual 
orientation publicly, but did not indicate it in his Facebook profile. During a panel 
discussion, the applicant stated, for example, that although he had never indicated 
on Facebook that he was homosexual, his sexual orientation could be inferred 
from his friend list. He did not speak about it in public because he wanted to be 
associated in public primarily with his fight for data protection. 
43 The referring court concludes from this that the applicant made that statement 
with the intention of questioning and publicly criticising the data processing 
already carried out by the defendant. Consent within the meaning of Article 9 of 
the GDPR therefore cannot be inferred from that statement. 
44 The question therefore arises as to how the applicant’s sensitive data would have 
had to be made public in order for Article 9(2) of the GDPR to apply.