The multiplication of sensitive data leaks on the Internet requires new vigilance to businesses. The boom of the OSINT (Open Source Intelligence), which consists in using online accessible information, offers strategic monitoring and cybersecurity opportunities. But it also exposes to major legal risks, often underestimated.
Too many players still confuse technical accessibility and legality of use, or the simple fact of collecting or processing certain information available on the Clear Web, Deep Web or Dark Web can engage the civil, criminal and regulatory responsibility of companies.
The operation of accessible data is not without condition
In European legal order, the free accessibility of a fact does not make it free of rights. Personal data, files protected by copyright, databases subject to a sui generis law are all legal protections which frame the collection, use and conservation of information found online.
In terms of cybersecurity, access a poorly protected server, consult an open directory by mistake, or extract files from a leak can be qualified as fraudulent access, illegal maintenance or unfair extraction within the meaning of the penal code. The simple detention of data from hacking exposes to prosecution for concealment, even if the company is not at the origin of the leak.
The chain of responsibility extends to customers
Legal risks do not only concern watch or cybersecurity providers. A company using an unscrupulous service provider, which operates databases from leaks or flights, can be held for an accomplice. The delegation does not protect, in French law as in European law, and the obligation of vigilance is necessary on the sponsors themselves.
An in -depth audit of service providers becomes imperative, what is the origin of the data, the collection methods, what about respecting the GDPR, and compliance with criminal texts relating to automated information systems (STAD). Any breach exposes financial sanctions, but also to major reputation risks in the event of public revelation.
Mandate, transparency and traceability: the pillars of a legal watch
The use of the OSINT in a secure setting is based on three fundamental requirements. First, explicitly mandate the providers, precisely defining the object, the nature and the limits of research. Then, ensure that the collection respects the rules of lawfulness, proportionality and loyalty imposed by the GDPR and the Criminal Code. Finally, require complete traceability of the actions carried out, namely the methods used, the sources consulted, the data collected and kept.
Compliance does not constitute an option, the NIS2 directive on cybersecurity requires European actors to strengthen their governance of digital risks, in particular in matters of proactive surveillance. In this normative environment under hardening, the wild bone belongs to the past. Only the supervised, documented and legally safe approaches will offer a real lever for protection and strategic decision to businesses.
