Maître Aubane Malvezin, banking lawyer, confirms that case law pays attention to the way in which the victim was approached, and sometimes, this can work against you.
Fake bank advisors, alarming emails or SMS… Scams are multiplying and increasing in ingenuity, driven by technologies that are evolving much faster than our legal framework. Artificial intelligence, in particular, “allows fraud to be deployed“by providing scammers with the perfect technical vocabulary to fool their targets,” notes Maître Aubane Malvezin, lawyer at the Aix-en-Provence Bar in consumer law and banking law. “What I see is that fraud affects everyone, all ages and all social levels combined.“. However, while anyone can fall for it, justice and banks do not treat all scams in the same way. When it comes time to claim your refund, the channel used by the fraudster to trap you can weigh heavily in the balance.
In principle, the law is on the side of the victim. According to article L133-18 of the Monetary and Financial Code, the bank is required to immediately reimburse its customer in the event of an unauthorized and duly contested payment transaction. But in reality, obtaining compensation is often a real obstacle course. To refuse to compensate, banking establishments regularly use an exception provided for by law: “gross negligence” committed by the victim customer. Concretely, the bank will seek to prove that the customer has “participated too actively“to fraud, for example by having”himself compromised the security of his personal banking data by carrying out manipulations initiated at the request of the fraudster without precaution”explains Maître Malvezin to us.
If this negligence is serious, the victim simply risks losing all of their money. “This is a double penalty for the customer: not only does he lose money, but the bank will also blame him for his negligence.“, adds the lawyer. Especially since the justice system has recently toughened its tone.”Where just a few years ago, banks reimbursed more spontaneously and judges were more overwhelmingly protective of victims, now, given the increase in fraud, case law is becoming a little more severe.“, observes the specialist. From now on, “the Court of Cassation increasingly requires judges to study the victim’s degree of negligence on a case-by-case basis.“And in this careful assessment, the method used by the scammer to approach you (email, SMS or phone call) can play a determining role.
“We will look at how the victim was approached: by email, by text message or via a phone call“, explains Maître Malvezin to us. Thus, “if it is a fraud by telephone spoofing, with theft of the bank’s telephone number for example, the case law will be less severe with regard to the defrauded customer, because we will estimate that put in a panic situation, his vigilance is less than that which he has when faced with support written (by email or SMS)“, she tells us. Indeed, with written support, the judges believe that the victim has more time to analyze the form, the content of the message or the email address…”Is the fraud really credible, or were there apparent anomalies that could have attracted his attention and prevented him from going through with the process?“.
According to the lawyer, “the advancement of new technologies allows fraud to be deployed, easily using doctored images which will fool the customer, and by providing the fraudster with technical banking vocabulary… Moreover, a majority of defrauded people are not at all aware that they are being victims“, she explains. Other elements are also taken into account when a victim is defrauded, such as the pressure experienced and the urgency mentioned. Because “the scammer plays on the fear he arouses in his “prey”, which represents an excellent lever to then carry out the manipulations and embezzle funds, thus making any victim vulnerable” concludes the specialist.
Thanks to Maître Aubane Malvezin, lawyer in consumer law and banking law, partner and Vice-President of the Aix association for the defense of consumer rights QUE CHOISIR ENSEMBLE.
