Cyberattacks against companies: directors' legal liability and legal defence strategies

The cyberattacks targeting companies engage the liability of corporate officers and require suitable strategies.

Faced with the constant increase in cyberattacks targeting organisations of all sizes, the question of directors' legal liability arises with particular acuity. Beyond the immediate operational and financial impacts, these incidents can now engage the personal liability of corporate officers, turning what was once considered a purely technical issue into a major legal risk.

This evolution of the legal framework requires directors to exercise heightened vigilance and to implement suitable defence strategies, where legal expertise becomes a decisive strategic lever.

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The legal foundations of directors' liability

Directors' liability in matters of cybersecurity rests on several legal foundations that complement and reinforce one another, creating an increasingly demanding normative ecosystem.

The general duty of care and prudence

Under French law, directors are bound by a general duty of care and prudence in the management of their company. This duty, set out in particular in Article 1850 of the Civil Code for non-trading companies (sociétés civiles) and in Article L.225-251 of the Commercial Code for public limited companies (sociétés anonymes), requires them to take all necessary measures to preserve the company's assets, including its informational assets and its reputation.

The fundamental legal analysis that a cybersecurity lawyer can carry out helps to clarify precisely the scope of this duty in the specific context of your organisation. Through a methodical assessment of the risks specific to your sector of activity and to your operating model, they identify the level of care expected and guide you in implementing measures proportionate to those risks.

The specific obligations arising from the GDPR

The General Data Protection Regulation (GDPR) has considerably strengthened organisations' obligations regarding the security of personal data. Article 32 of the regulation requires the implementation of "appropriate technical and organisational measures to ensure a level of security appropriate to the risk".

While the GDPR does not directly target directors, case law and legal doctrine tend to consider that the obligation to ensure compliance falls within their responsibility as the ultimate decision-makers regarding the company's strategic direction and investments. This liability may be particularly engaged in the event of manifest negligence or of savings made at the expense of data security.

The legal risk mapping drawn up by an adviser enables you to identify precisely your obligations under the GDPR and under other sector-specific regulations that may potentially apply. This global and strategic vision constitutes the foundation of robust data governance, aligned with regulatory requirements while remaining suited to your operational reality.

Strengthened sector-specific obligations

Certain sectors are subject to specific cybersecurity obligations that supplement the general framework. This is notably the case for Operators of Essential Services (OES) and Operators of Vital Importance (OIV), subject respectively to the NIS directive (and soon NIS 2) and to the French framework for the security of activities of vital importance.

The financial sector is also the subject of particular attention, with specific requirements imposed by the Prudential Supervision and Resolution Authority (ACPR) and soon by the European DORA regulation (Digital Operational Resilience Act).

The in-depth sector expertise of a cybersecurity lawyer is a decisive asset for navigating this regulatory complexity. Their knowledge of the requirements specific to your industry enables you to align your cybersecurity strategy with the particular expectations of your sector regulators, thereby avoiding blind spots in your protection framework.

The emergence of a duty of cybersecurity

Beyond explicit legal obligations, case law is progressively outlining the contours of a genuine "duty of cybersecurity" incumbent upon directors. In several recent decisions, the courts have held that implementing a security framework suited to the risks incurred fell within the direct responsibility of the management bodies.

This evolution in case law, combined with new regulatory requirements such as those introduced by NIS 2, tends to establish a specific liability of directors in matters of cybersecurity, distinct from their general management obligations.

The strategic monitoring of case law provided by an expert legal adviser enables you to anticipate these developments in the law and to proactively adapt your governance. This anticipatory approach, fed by in-depth knowledge of legal trends, constitutes a significant competitive advantage in a constantly changing regulatory environment.

The risks of personal liability for directors

Directors' liability in matters of cybersecurity may be engaged on various grounds, exposing corporate officers to personal legal risks that may have significant consequences.

Civil liability: compensation and damages

In civil matters, a director's liability may be engaged on the basis of management misconduct (Article L.225-251 of the Commercial Code for public limited companies). Characterised negligence regarding cybersecurity, such as the absence of basic protection measures or the refusal to invest in security despite repeated warnings, may be qualified as management misconduct if it causes harm to the company.

This liability may be engaged:

• By the company itself (corporate action)
• By the shareholders (action ut singuli)
• By the creditors in the event of insolvency proceedings

The personalised preventive strategy that a cybersecurity lawyer can devise for directors enables them to identify the minimum measures to implement in order to demonstrate their diligence. This approach, based on an analysis of the risks specific to the organisation, constitutes an effective shield against allegations of negligence.

Criminal liability: specific offences

At the criminal level, several offences may be charged against directors in the event of a cyberattack, in particular:

• Endangering others (Article 223-1 of the Criminal Code), in the event of manifest negligence that has exposed persons to an immediate risk
• Characterised negligence regarding the protection of personal data (Article 226-17 of the Criminal Code)
• Failure to notify a personal data breach (Article 83.4 of the GDPR)

To these specific offences may be added more general qualifications such as misuse of corporate assets, if the savings made on cybersecurity served interests other than those of the company.

The preventive legal support offered by an adviser makes it possible to identify these criminal risks and to put in place the procedures necessary to prevent them. This proactive approach, focused on compliance and the documentation of decisions, constitutes your best protection against possible criminal prosecution.

The consequences for professional reputation

Beyond direct legal sanctions, holding a director personally liable in matters of cybersecurity can have lasting consequences on their professional reputation and career. The publicity that generally surrounds such cases, amplified by social media, can durably affect the image and professional prospects of the director concerned. The strategic crisis management orchestrated by a cybersecurity lawyer makes it possible to best preserve your reputation in the event of an incident. Their command of the legal and communication aspects of crisis management guides you in adopting a balanced posture, demonstrating your responsible commitment while minimising the legal risks associated with public statements.

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The criminal implications of cyberattacks

Beyond directors' liability, the cyberattacks themselves constitute criminal offences, an understanding of which is essential to building an effective defence strategy.

The criminal framework applicable to cyberattacks

The French Criminal Code devotes several articles to offences relating to automated data processing systems (STAD). These provisions, grouped mainly in Articles 323-1 to 323-8, provide for severe penalties for various types of malicious acts:

• Fraudulent access to a system (Article 323-1): up to two years' imprisonment and a €60,000 fine, increased to three years and €100,000 if the system is altered
• Obstruction of the operation of a system (Article 323-2): up to five years' imprisonment and a €150,000 fine
• Fraudulent introduction of data (Article 323-3): up to five years' imprisonment and a €150,000 fine

These penalties may be increased when the offences target systems processing personal data on behalf of the State or when they are committed by an organised group.

The legal-technical expertise of a cybersecurity lawyer brings an essential dimension to your understanding of these offences. Their ability to translate technical concepts into precise legal qualifications makes it possible to effectively direct investigations and to optimise your chances of obtaining compensation.

The legal qualification of the various cyberattacks

The diversity of cyberattacks (ransomware, phishing, denial of service, etc.) raises complex questions of legal qualification. Depending on the circumstances and the techniques used, a single attack may fall under several offences simultaneously, or may even be accompanied by related offences such as extortion or blackmail.

The in-depth legal analysis carried out by an expert adviser makes it possible to identify precisely the criminal qualifications applicable to the attack of which you have been a victim. This rigorous qualification, supported by appropriate technical documentation, constitutes the foundation of an effective criminal complaint likely to result in concrete prosecution.

Filing a complaint: strategic aspects

Filing a complaint following a cyberattack represents a major strategic issue, raising numerous questions:

• Should a complaint be filed against an unnamed person (contre X) or should identified suspects be targeted directly?
• Is it preferable to refer the matter to specialised police services (OFMIN, C3N, BL2C) or to territorial services?
• In which cases is it relevant to refer the matter directly to the public prosecutor through a simple complaint or with civil-party application?

The personalised judicial strategy devised by a cybersecurity lawyer optimises the effectiveness of your criminal action. Their knowledge of the specific features of this litigation and their relationships with specialised services enable you to direct your complaint to the most appropriate contacts, thereby maximising your chances of obtaining an effective criminal response.

Immediate post-cyberattack actions

Managing the first hours following the discovery of a cyberattack is decisive, both for the preservation of evidence and for limiting legal risks.

The preservation of digital evidence

Digital evidence is by nature volatile and easily altered. Its methodical preservation from the very first moments following the discovery of the attack is essential both for technical investigations and for subsequent judicial proceedings.

The technical and legal support provided by a lawyer guarantees the legal admissibility of the evidence collected. Through a rigorous methodology that respects the principles of the chain of custody, they ensure that the technical elements can be validly produced in court, thereby significantly strengthening your position in any litigation proceedings.

Mandatory notifications

Several notification obligations may apply following a cyberattack, each with its own deadlines and procedures:

• Notification to the CNIL in the event of a personal data breach presenting a risk to individuals (72 hours)
• Informing the data subjects if the risk is high
• Notification to ANSSI for OES and OIV
• Reporting to law enforcement (notably for ransomware attacks)
• Informing contractual partners if the clauses so provide
• Notification to insurers

The integrated legal coordination provided by an expert adviser makes it possible to effectively manage these multiple, sometimes contradictory, obligations. Their global approach helps you prioritise these notifications and harmonise their content, thereby avoiding the potentially damaging inconsistencies between different communications.

Crisis communication

External communication following a cyberattack is a particularly delicate exercise, requiring the reconciliation of transparency imperatives with the protection of the legal interests of the organisation and its directors.

The legally secured communication strategy developed with the help of a cybersecurity lawyer enables you to effectively inform your stakeholders without creating additional legal vulnerabilities. Their advice on the content, timing and recipients of communications helps you avoid the classic pitfalls of crisis communication in this specific context.

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Defence strategies for directors

Faced with these multiple legal risks, directors must adopt a proactive approach combining prevention and preparation for crisis management.

Essential preventive measures

Several preventive actions can significantly reduce the risk of directors being held personally liable:

• Implementation of formalised governance of cybersecurity
• Allocation of adequate resources (human, technical, financial)
• Regular performance of security audits and follow-up on recommendations
• Documentation of decisions relating to cybersecurity
• Training and awareness-raising of teams

The structured preventive approach proposed by a lawyer transforms these generic measures into a bespoke framework suited to your specific context. Their in-depth knowledge of case-law expectations guides you in implementing a governance ecosystem that demonstrates your diligence and your proactive commitment to cybersecurity.

Drawing up an incident response plan

Preparing an incident response plan (IRP) is a central element of any legal defence strategy. This document formalises the procedures to follow in the event of an incident, identifies the responsibilities of each party involved and provides for the necessary resources.

The legal-technical design of a response plan carried out with the support of an adviser guarantees the consistency of your framework with your legal obligations. This integrated approach enables you to anticipate the various regulatory requirements while preserving your operational ability to manage the crisis effectively.

Documentation as a defence element

The methodical documentation of the security measures implemented and of the decisions taken is a central element of directors' defence. This documentation must demonstrate the diligence and the reasonable nature of the choices made, even if those choices did not entirely prevent the incident.

The defensive documentary engineering developed by a cybersecurity lawyer enables you to build a probative file demonstrating your commitment to security. This documentation, designed from a litigation perspective, constitutes an effective shield against allegations of negligence, turning each documented decision into a tangible element of your defence.

Suitable insurance cover

Insurance policies for cyber risks and directors' and officers' liability (D&O) can offer valuable financial protection in the event of a claim. However, these contracts generally contain specific exclusions and conditions that require particular attention.

The targeted contractual analysis carried out by a legal adviser enables you to identify any gaps in your insurance cover. This critical assessment helps you negotiate appropriate amendments or take out additional cover, thereby ensuring optimal protection of your personal assets.

Towards an integrated approach to cyber risk

The evolution of the legal framework regarding cybersecurity is profoundly transforming the nature of directors' liability. Cybersecurity can no longer be regarded as a purely technical matter delegated to IT teams, but must be apprehended as a strategic risk potentially engaging the personal liability of corporate officers.

Faced with this reality, the adoption of an integrated approach combining technical and legal expertise becomes imperative for directors keen to protect both their organisation and their personal liability. This approach, based on clear governance, proportionate investments and rigorous documentation, now constitutes the standard of diligence expected of company directors.

Our firm supports directors in devising and implementing legal defence strategies suited to the specific challenges of cybersecurity. Thanks to our combined expertise in liability law and cybersecurity, we offer you bespoke support, reconciling the legal protection of directors with the effective securing of your organisation against cyber threats.