Facebook, outing in a public context does not authorise personalised advertising

The outing in a public context makes the data manifestly public, but this stance, in itself, does not authorise social networks to process such data for the purposes of personalised advertising. These are the conclusions reached by the Advocate General of the Court of Justice of the European Union, Rantos, in case C-446/21, brought before the Austrian courts by a Facebook user who had accepted the conditions set by the social media but considered the processing of his personal data to be unlawful, as he often received advertisements aimed at homosexuals and invitations to corresponding events. Advertisements not based directly on his sexual orientation but on an analysis of his centres of interest. Later, at a round table, the social user had spoken publicly about his homosexuality, without posting anything about it on his Facebook profile.

The case involving, Meta Platforms Ireland Limited, formerly Facebook Ireland Limited, had come to the attention of the Austrian Supreme Court, which referred a number of questions for a preliminary ruling on the interpretation of the General Data Protection Regulation (GDPR) The Austrian judges asked the Court in Luxembourg whether a network such as Facebook can analyse and process all the personal data it has without time limits for the purpose of targeted advertising. In addition, they asked the Court whether the fact that a person has expressed his or her sexual orientation during a round-table discussion permits the processing of other data on that subject for the purpose of targeted advertising.

As regards the first question, Advocate General Athanasios Rantos proposes that the Court should declare that the GDPR precludes certain personal data from being processed for the purposes of targeted advertising without a time-limit. The national court must be able to assess, in particular on the basis of the principle of proportionality, to what extent the storage period and the amount of data processed are justified in the light of the legitimate purpose of processing those data for the purposes of personalised advertising. With regard to the second question, the Advocate General takes the view, subject to the factual checks to be carried out by the Austrian Supreme Court, that the fact that the Facebook user expressed his sexual orientation in full knowledge of the facts in the context of a round-table discussion open to the public may constitute an act by which he 'manifestly made public' that information within the meaning of the GDPR. Rantos points out that although sexual orientation data fall into the category of particularly protected data that are subject to a processing prohibition, this prohibition does not apply if such data are made manifestly public by the data subject. However, such a position in itself does not authorise the processing of such data for the purposes of personalised advertising.

In the case examined, the Advocate General considers the willingness or at least the awareness on the part of the person concerned to make his sexual orientation public. Given the open nature of the round table, which was broadcast live and subsequently rebroadcast in streaming, and the public's interest in the subject matter, it was clear that the applicant's statement could have reached an indefinite audience, far larger than the one present in the room. Moreover - for the Ag - it is perfectly possible to assume that, by speaking openly about his sexual orientation in the context of an event open and accessible to the press, the appellant had, if not the intention, at least the full awareness of making it manifestly public.

Rantos points out that the objective of the protection afforded by the GDPR is, in his view, to prevent the person concerned from being exposed to detrimental consequences, such as, in particular, public contempt or discriminatory acts, resulting from a negative perception, from a social or economic point of view, of the situations listed. The provision thus provides for special protection of those personal data by means of a prohibition, not absolute in principle, the application of which in the present case is subject to the assessment of the person concerned, who is the person who can best assess the prejudicial consequences that might ensue from the disclosure of the data in question and who, if appropriate, may waive that protection or refrain from availing himself of it, with full knowledge of the facts, by manifestly making his situation and, in particular, his sexual orientation, public.