Sensitive
data in an
AI chatbot.
Sensitive
data in an
AI chatbot.
of
Should companies expect users to confide in their AI chatbots about health issues, religious questions, or heartbreak? And are they allowed to use that information for advertising purposes? Citing Snapchat as an example, the Cologne Regional Court ruled that sensitive data collected by AI chatbots is not merely a byproduct.
A chatbot in the Messenger app
Snapchat is primarily a camera and messaging app. Users use it to share photos, short videos, and text messages. The service is intended for users aged 13 and older. The contractual partner for users in Germany is Snap Group Limited, based in London, a wholly owned subsidiary of the U.S.-based Snap Inc. The app includes the “My AI” chatbot, which, according to the court’s findings, is based on ChatGPT.
Before the app is used for the first time, it displays a one-time notice that users must confirm by tapping “Okay.” Among other things, the notice states that My AI may use users’ information to improve Snap Inc.’s products and personalize the user experience, “including ads.” The Federation of German Consumer Organizations (VZBV) deemed this to be impermissible. Following a cease and desist letter dated October 24, 2023, the association filed a lawsuit seeking an injunction. It also challenged pre-checked boxes in the advertising settings and preselected advertising topics in accounts belonging to minors.
Snap’s Response
Snap defended itself on several fronts. Snap Group Limited does not collect any data itself; only the parent company does so. Only non-sensitive data is processed. The advertising in My AI is not personalized, but merely context-based. Anyone who nevertheless shares sensitive information with the chatbot against the company’s advice is imposing that data. Such “imposed collection” does not fall under the specific prohibition on sensitive data. Furthermore, the processing is justified by legitimate interests.
The Cologne Regional Court prohibits the use of chat inputs for advertising purposes
The Cologne Regional Court granted the claim in its entirety (judgment dated September 17, 2026—Case No. 33 O 120/24). Snap may not process personal data collected via My AI for advertising purposes without a legal basis if this is done as described in the notice displayed before first use.
The court also prohibited pre-checked boxes in ad preferences. In accounts held by minors, Snap is also no longer allowed to preselect “alcohol” and “gambling” as advertising topics. The court repeatedly cited statements from the Federal Commissioner for Data Protection and the North Rhine-Westphalia State Commissioner for Data Protection. It left open the question of whether the claims also arise under competition law.
Who is liable when the corporate group processes the data?
In the court’s view, Snap Group Limited is, in any case, jointly responsible for data processing with its parent company. This follows from its own terms of service. In those terms, the company grants itself extensive rights to users’ content and reserves the right to display personalized advertising. On its website, it also describes itself as a service provider. It must be held accountable for this. If multiple parties are jointly responsible, data subjects may assert their rights against any one of them.
This is an important message for corporate groups. Any company that claims broad rights for itself in its terms of use cannot simply shift responsibility under data protection law to the parent company later on.
Why can’t sensitive data be hidden in an AI chatbot?
The GDPR generally prohibits the processing of special categories of personal data. These include, for example, information regarding health, religious beliefs, political opinions, or sexual orientation. Such processing is permitted only in narrowly defined exceptional cases, in practice usually with explicit consent. In the court’s view, this specific prohibition supersedes the general grounds for processing personal data. A provider can therefore no longer rely on a legitimate interest.
The court considered it obvious that such data is generated by My AI.
Not only is it technically possible to transmit sensitive data to the defendant’s chatbot, but the user is even encouraged to provide the chatbot with personal information upon first use by the message, “You can ask me all kinds of questions….”
The court did not consider a warning notice on a subpage of the privacy policy to be sufficient. It was merely non-binding advice that the majority of users would not take note of. Furthermore, the app is also aimed at young people, who are less aware of the risks than adults. The court also inferred from Snap’s own statements that the data entered is processed for advertising purposes. According to those statements, text queries submitted to My AI are used to determine whether and which advertisements are displayed.
The court rejected the argument regarding the imposition of data. It cited the European Court of Justice, which has already ruled that the prohibition applies regardless of whether the controller specifically intends to obtain sensitive information (judgment of July 4, 2023 – Case No. C-252/21). According to the same judgment, a dataset as a whole falls under the prohibition if sensitive and other data are collected together, cannot be separated, and contain at least one piece of sensitive information.
Is a notice with an “OK” button sufficient?
According to the court’s findings, Snap had neither obtained nor claimed explicit consent for sensitive data. The notice displayed before first use was also not considered valid consent. The court additionally examined whether the processing would be permissible without the specific prohibition and concluded that it was not.
A legitimate interest fails simply because Snap did not inform users of this interest at the time the data was collected. Likewise, there is no information regarding the legal basis. The court based its ruling on another decision by the European Court of Justice (judgment of January 9, 2025—Case No. C-394/23). It left open the question of whether a balancing of interests would favor Snap. However, it expressed doubts about this because the service is specifically aimed at minors.
What does this mean for companies with their own chatbots?
The ruling concerns a social network. However, in our view, the reasoning can be applied to many other areas where artificial intelligence is used, such as customer service bots, advisory assistants in online stores, or appointment assistants. According to this ruling, anyone who allows users to type freely must expect that health-related information or other sensitive data may also be entered. In the court’s view, a notice asking users to refrain from providing such information does not change this.
It is important to note the scope of the ruling. The use of chat inputs for advertising purposes is prohibited. The court did not have to decide whether the same standards also apply to simply responding to inquiries, improving products, or training AI models. Furthermore, this is a decision by a single regional court and does not constitute established case law. We have previously reported on liability for one’s own AI chatbot.
Conclusion
This outcome was to be expected given the European Court of Justice’s case law on sensitive data. What is new is its consistent application to an AI chatbot. This is unfavorable for ad-supported chat services, as the analysis of conversation content for advertising purposes now generally requires explicit consent.
The critical point is that the reasoning goes beyond the ruling itself. If unsolicited sensitive inputs subject the entire chat history to this specific prohibition, the question arises as to the basis on which an open chatbot is permitted to process any inputs at all. This also applies to the mere act of responding. The court did not have to rule on this question. It also remains unclear whether technical filters that screen out sensitive content before any further use would alter the assessment in any way.
We’d be happy to
advise you on
Data protection!
