Whether in the context of a business or personal life, it is crucial that companies are aware of the cyberspace laws in their jurisdiction. This article looks at what you need to know about the legal framework governing cybersecurity in France.
In terms of the criminal law, French legislation includes specific offences related to IT fraud and the violation of automated data processing systems (Sections 226-16 and following of the Criminal Code). It also covers violations of personal rights resulting from computer files or processing.
What are the cyberspace laws in France?
There are several national laws governing cyberspace. They range from regulating the use of the Internet to imposing penalties on cybercrime. Some of the more prominent laws include those relating to cybersecurity and data protection.
France has a long tradition of protecting its citizens online. Its law enforcement agencies are on a continuous hunt for cyber-attackers and have been successful in many instances, particularly in the past year.
The French government is also committed to preventing the spread of disinformation. As such, it has joined the Freedom Online Coalition, launched a call for action on countering disinformation, and plans to advance technology to promote transparency and accountability in the digital world.
To that end, the French Ministry of Defence has recently published a position paper on international law as applied to operations in cyberspace. The paper is entitled Droit International Applique aux Operations dans le Cyberspace (International Law Applicable to Operations in Cyberspace) and it sets out several key points.
Among the most notable is the inclusion of an exception to the general rule that coercion must be involved in order to constitute a prohibited intervention. The paper notes that this exception applies to “digital interference in the internal or external affairs of the State”, citing a decision from the International Court of Justice regarding Nicaragua.
This translates into the legal requirement for a State to conduct “due diligence” on any cyber operation it undertakes. The government’s position paper suggests that due diligence requires “a number of things”, including a review of the risks associated with the conduct in question, establishing an effective response plan, and ensuring that a risk assessment is updated regularly.
The French position paper on the international law rules as applicable to operations in cyberspace is a timely one, and should be welcomed by States as it raises the bar on responsible behaviour in cyberspace. The paper will certainly encourage discussion and the drafting of new international law norms that are designed to protect people, property, and privacy in a cyberspace increasingly threatened by criminal activity, malicious hacking, and other forms of digital interference.
Cybercrime
Cybercrime is a wide-ranging term that refers to crimes committed online or using the Internet. It includes fraud, theft of identity, unauthorized access to private information and data breach. These crimes can also include the illegal copying of computer software or trademarks, the trafficking of child pornography and intellectual property, and violations of privacy.
The criminal law of cybercrime is a complex area of law, but it has a strong base in international criminal law. Several States, including France, have adopted laws or regulations that deal with this subject.
In the United States, for example, a number of federal and state laws make it a crime to collect personal data by fraudulent or unfair means. These laws can be applied to individuals or businesses and are designed to prevent the occurrence of cybercrimes.
Many of these laws are sector-specific, covering financial institutions, healthcare companies and other industries. Others, like the Gramm-Leach-Bliley Act, focus on financial institutions and regulate their policies for protecting customer data.
These laws can have a negative impact on companies’ reputations, as well as their ability to provide services. In some cases, they can even lead to the loss of a company’s business.
Another important issue that affects the cyberspace laws in France is digital interference (interference with a State’s internal or external affairs). This is a crime under French law and can be punished by up to five years in prison and a EUR300,000 fine.
Moreover, cyberattacks that penetrate military systems and weaken the defensive capabilities of the French Armed Forces are a use of force under French law, as is funding and training groups to conduct cyber attacks against France (the latter example drawn from the Nicaragua judgment’s holding that arming and training armed groups is a use of force).
In addition to its use of force and intervention laws, France has a number of other laws and regulations aimed at protecting people and their rights online. For instance, it has a law that makes it illegal to publish racist or xenophobic propaganda through cyberspace and an Additional Protocol that makes it a crime for anyone to incite hatred or violence by using the Internet.
Cybersecurity
Cyberspace is the space where computers and other devices exchange information, including sensitive data. This is a vital area of cybersecurity because it affects governments, military, corporate and financial institutions, health professionals and other organizations, as well as individual users.
In order to protect sensitive information and systems, companies must implement security measures, including a risk assessment. These measures include the use of antivirus software, firewalls and encryption technology. They also require that employees are trained in cybersecurity and that security patches are updated regularly.
The French government has a policy of protecting its cyber infrastructure, which includes the Internet and its networks, from cyber attacks and has set up a national cybersecurity agency (ANSSI). This aims to prevent cyber-attacks from affecting the operation and reputation of French companies and their products.
It imposes specific requirements on the operator of critical infrastructure, which it defines as “a system that has a high degree of importance to economic or military potential, the resilience of the Nation or its ability to secure itself”. These rules apply not only to public and private institutions, but also to individuals, who must take responsibility for their own cybersecurity.
For example, healthcare providers must have information systems and use them for the processing of their patients’ personal health data in compliance with standards of interoperability and security. They must report serious incidents of cybersecurity to the relevant authorities and adopt specific measures requested by them.
These requirements are enshrined in the law of France. They also form the basis for compliance with international laws, in particular those pertaining to privacy and data protection.
Moreover, the law requires that payment service providers must submit to the Banque de France and the ACPR (Autorite des marches financiers) a notification of serious cybersecurity incidents within four hours after they occur. This model of notification is similar to that used for the reporting of financial crimes.
The UK and France have articulated their legal positions regarding cyber operations, a move that is likely to be followed by other States. This normative transparency is critical to international peace and security in cyberspace, because it enables deterrence and helps avoid escalation of misunderstandings.
Data Protection
Data protection is an important issue to consider when operating in the cyberspace. It covers the rights of individuals, and ensures that companies can protect their privacy while still fulfilling regulatory requirements.
France’s Data Protection Act (FDA) provides for the protection of private user information. It includes a number of obligations that companies must adhere to, including obtaining users’ consent before processing their data and making it available only to those who need it.
French law also requires that data controllers must notify their Data Protection Authority (“CNIL”) within 72 hours of discovering a breach that could result in the loss, unauthorised disclosure or unauthorised access to personal data. The notification must contain a description of the Incident, a list of affected data subjects and a detailed description of any measures that were taken to remedy or mitigate the negative effects.
In addition, data controllers must provide data subjects with an overview of their rights under the GDPR, including their right to be informed about their data and the right to set out guidelines relating to the fate of their data after death. This is particularly applicable to health data, which is defined as “sensitive data” by the CNIL.
A ‘Honeypot’ is considered legal under French law if it is used as a passive trap to detect a cyber threat and the evidence it produces is not relevant to the criminal case. However, it may not be appropriate to use a Honeypot to collect data on a computer’s user, as this could breach the GDPR’s consent requirement.
The French National Security Agency has issued a number of cybersecurity standards that apply to public-sector enterprises, such as those in the military and government. These standards are intended to improve the security of critical information systems, such as those that support critical infrastructures.
Several French institutions have also adopted the NIS Rules, which set out a risk analysis of their essential information systems and require them to implement emergency management procedures in the event of a major cyberattack. FSNs are also required to assess the security of their information systems and notify subscribers of any vulnerabilities that they may have.
