In expressing disagreement with the proposed literal interpretation of Article 13(1)(c) GDPR set outin the Preliminary Draft Decision, Facebook submitted that “Facebook Ireland’s interpretation directlytracks the actual wording of the relevant GDPR provision which stipulates only that two items ofinformation be provided about the processing (i.e. purposes and legal bases). It says nothing aboutprocessing operations.”102 Facebook submitted that because, in its view, Article 13(1) GDPR applies “atthe time data is collected”, and therefore refers only to “prospective processing”. It submits that, onthis basis, Article 13(1)(c) GDPR does not relate to ongoing processing operations, but is concernedsolely with information on “intended processing”.103 Facebook’s position is therefore that Article13(1)(c) GDPR is future-gazing or prospective only in its application and that such an interpretation issupported by a literal reading of the GDPR

In light of this confirmation by the data controller that it does not seek to rely on consent in thiscontext, there can be no dispute that, as a matter of fact, Facebook is not relying on consent as thelawful basis for the processing complained of. It has nonetheless been argued on the Complainant’sbehalf that Facebook must rely on consent, and that Facebook led the Complainant to believe thatit was relying on consent

For these reasons, I conclude that, as a matter of fact, Facebook did not rely, or purport torely, on the Complainant’s consent as a legal basis for the processing of personal data under theTerms of Service

On this basis, the issues that I will address in this Draft Decision are as follows: Issue 1 – Whether clicking on the “accept” button constitutes or must be considered consentfor the purposes of the GDPR Issue 2 – Reliance on Article 6(1)(b) as a lawful basis for personal data processing Issue 3 – Whether Facebook provided the requisite information on the legal basis forprocessing on foot of Article 6(1)(b) GDPR and whether it did so in a transparent manner.