If they lose this case, do you think it would it leave Facebook a liability for no longer being able to fulfill that contract? I.e. you can’t share my data, now where are my personalized ads that you promised?
IANAL, but I think that clause would become null and void.
User: "hey Facebook where's the personalised ads you promised me?"
Facebook: "that clause was found to be illegal, and we have notified you that it is unenforceable by either party."
Right, and Facebook is arguing that it’s because they have to fulfill a contract. However, GDPR may block them from collecting the data they need to serve personalized ads. This would mean they wouldn’t be able to fulfill the contract.
To phrase my question in another way, would that contract still need to be fulfilled, if they are blocked by GDPR from collecting the data they would need to fulfill it?
