Force majeure, a French term meaning "superior force," is a common clause in contracts that frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties prevents one or both parties from fulfilling their obligations. In the realm of cybersecurity, this concept becomes critical for managing risks associated with digital infrastructure, data protection, and service delivery.

What is force majeure in the context of cybersecurity?

In cybersecurity, force majeure typically covers events that are unforeseeable, unavoidable, and outside the reasonable control of the affected party. These may include:

• State-sponsored cyber warfare attacks leading to widespread infrastructure collapse
• Massive, unpreventable ransomware campaigns affecting multiple organizations simultaneously
• Natural catastrophes destroying data centers and critical infrastructure
• Acts of war, terrorism, or civil unrest disrupting digital services

The specific wording of a force majeure clause in cybersecurity agreements (such as SaaS contracts, cloud services, or managed security agreements) dictates which cyber-related events qualify and what remedies or suspensions of service are permitted.

Why is a force majeure clause essential in cybersecurity contracts?

Force majeure clauses are essential in cybersecurity contracts because they:

• Provide legal protection when extraordinary events disrupt service delivery
• Clarify expectations regarding business continuity during extreme circumstances
• Define the impact on Service Level Agreements (SLAs) during qualifying events
• Establish procedures for notification and documentation when invoking the clause
• Help allocate risk appropriately between service providers and clients

Organizations like ISACA and frameworks from NIST emphasize the importance of clear contractual language around unforeseen disruptions.

When does a cybersecurity incident qualify as force majeure?

A cybersecurity incident typically qualifies as force majeure when it meets three key criteria:

1. Unforeseeability: The event could not have been reasonably anticipated
2. Unavoidability: Standard security measures could not have prevented it
3. External origin: The event originated outside the reasonable control of either party

Example scenario: A state-sponsored cyberattack targeting critical national infrastructure leads to a widespread power grid failure, impacting data centers and rendering cloud services unavailable for an extended period. In this case, even organizations with robust security measures would be affected, potentially qualifying the event as force majeure.

How do you invoke a force majeure clause in a cybersecurity incident?

To properly invoke a force majeure clause during a cybersecurity incident:

1. Document the incident thoroughly, including timeline and impact assessment
2. Notify affected parties promptly as specified in the contract
3. Demonstrate that the event meets the contractual definition of force majeure
4. Show that reasonable mitigation efforts were undertaken
5. Provide regular updates on the status and expected resolution

Guidance from regulatory bodies like CISA and compliance frameworks such as GDPR and CCPA may influence how force majeure claims are evaluated.

Which types of cyber incidents are typically excluded from force majeure?

Not all cyber incidents qualify as force majeure. Events typically excluded include:

• Common malware infections that standard security controls should prevent
• Data breaches resulting from negligence or inadequate security practices
• System failures due to poor maintenance or outdated infrastructure
• Phishing attacks targeting employees without proper training
• Incidents that could have been prevented with industry-standard precautions

Contrast example: While a novel and unprecedented zero-day ransomware worm that rapidly propagates globally and overwhelms traditional defenses might qualify as force majeure, a ransomware attack resulting from unpatched systems would typically not qualify, as it could have been prevented through reasonable security measures.

Best practices for addressing force majeure in cybersecurity contracts

Organizations should consider:

• Clearly defining which cyber events constitute force majeure in contract language
• Establishing notification timelines and documentation requirements
• Specifying the duration and conditions for suspending obligations
• Including provisions for partial performance where possible
• Addressing data protection responsibilities during force majeure events
• Reviewing and updating clauses regularly based on evolving threat landscapes