Responding to an email with "serious anomalies"​,transferring personal data, blocks reimbursement by the bank: French Cour de cassation, July 1st 2020

Full reference: Frison-Roche, M.-A., Responding to an email with "serious anomalies"​,transferring personal data, blocks reimbursement by the bank: French Cour de cassation, July 1st 2020, Newsletter MAFR - Law, Compliance, Regulation, 10th of September 2020

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Summary of the news

"Phishing" is a kind of cyber criminality aiming to obtain, by sending fraudulent emails which look like to those sent by legitimate organisms, recipient's personal information in order to impersonate or steal him or her. As it is difficult to find the authors of "phishing" and to prove their intentionality in order to punish them directly, on mean to fight against "phishing" could be to entitle banks to secure their information network and, to accompany this obligation with a strong incentive, to convict them to reimburse the victims in case of robbery of their personal data.  

In 2015, a client victime of this kind of fraud asked to his bank, the Crédit Mutuel, to reimburse him the amount stole, what the bank refused to do on the grounds that the client committed a fault, transferring its confidential information without checking the email, however grossly counterfeit. The Court of first instance gave reason to the client because although he committed this fault, he was in good faith. This judgment was broken by the Chambre commerciale de la Cour de cassation (French Judicial Supreme Court) by a decision of 1st of July 2020 which states that this serious negligence, exclusive of any consideration of good faith, justifies the absence of reimbursement by the bank.

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From this particular case, we can draw three lessons: 

1. The Cour de Cassation states that good faith is not a salient criterion and that, as the bank must react when a banking account is objectively abnormal, the client must react face to an obviously abnormal email. 
2. The Cour de Cassation describes the repartition of proof burden. Proof obligations are alternatively distributed between the bank and its client. First, the bank must secure its information network but, secondly, the client must take every reasonable measure to preserve its safety. It results from this that, if the email seems normal, phishing damages must be supported by the bank, and more generally of by the firm, while if the email is obviously abnormal, they must be supported by the client, but the burden to prove the abnormality of the email must be supported by the firm and not by the client. 
3. Such a proof system shows that Compliance Law includes a pedagogic mission by educating each client in order to he or she would be able to distinguish among his or her emails, those which are normal and those which are obviously suspect. This pedagogic dimension, with the legal consequences associated to it, will not stop to spread. 

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