“Never confess! shouted the criminal Davinain, on the guillotine. An evil spirit could give this advice to bank customers, victims of fraudulent debits after a “phishing” or “phishing” operation… They have no interest in recognizing that they have entrusted their confidential data to hackers. , after having “bitten the bait” of falsified e-mails: the banks consider it to be a “gross negligence”, justifying that they do not reimburse them.
If, before the judge, they deny this fault, it is up to the bank, according to the case law of the Court of Cassation (15-18.102 in particular), to prove that they disclosed this confidential data. However, as this is almost impossible for her, she will be condemned to compensate them.
If, on the other hand, they admit to having replied to a suspicious email, the bank may be authorized not to reimburse them: since March 28, 2018 (16-20.018), the Court of Cassation in fact rules that the customer commits gross negligence when he responds to an e-mail containing “clues” allowing “a normally attentive user to doubt [sa] origin “. It requires the courts to examine these indicia, as the following case reminds us.
On December 28, 2017, Mr. X noted that his account at Crédit Mutuel had been debited with 2,600 euros, for purchases of which he was not the author. Realizing that he has been the victim of phishing, he forwards the email to his agency adviser, to which he has replied, fearing that his remote purchases will be blocked.
“In full knowledge of the facts”
Although this message is supposed to come from Crédit Mutuel, whose logo it displays, it is sent by a certain “[email protected]”. Its object is “SPAM is writing to you”. His text contains French errors (“adhere to the new regulations”, “you can more”). Its syntax is faulty from one end to the other, and its content is false, since it refers to a warning about a risk of blocking, which was not given.
The bank considers that Mr. X should have wondered about his origin, and refuses to reimburse him. The district court of Lens (Pas-de-Calais), before which it assigns it, condemns it to do so. He criticizes him for not proving that Mr. X, who claims to have been ” deceived “provided his information “knowingly”.
Crédit Mutuel is appealing in cassation. He asserts that the court should have examined the e-mail, in order to judge whether it contained clues to cast doubt on its provenance. The Court agrees with him, November 24, 2021 (20-13.767). It breaks the judgment and sends the parties back to the local court of Arras (Pas-de-Calais), so that it can retry the case. If Mr. X, showing bad faith, had not confessed, he would probably already be reimbursed.