Responsibility of Banking Entities against Electronic Fraud. The Duty of Safety and Prevention within the Framework of the Consumer Contract

Abstract

It seems necessary to deepen the analysis of the responsibility of banking entities in the face of the explosion of electronic fraud –which, above all, proliferated during the pandemic–, whose victims turned out to be –mostly– consumers of banking services. In times of the rise of new and modern technologies, it is imperative that banking entities intensify precautions for effective prevention and awareness against attacks by cybercriminals who are constantly modernizing the mechanisms used for searching and capturing data, personal codes and passwords of their clients. The security obligation emanates directly from the constitutional mandate contained in article 42 of the National Constitution, which lists, among the basic rights of consumers, “the protection of their security and economic interests”. The most common modality by which electronic scams are carried out is called “phishing”, however, there are other modalities that are also developed by cybercriminals. In general terms, and given the configuration of non-compliance regarding the duty of prevention and security that the banking entity must comply with within the framework of the consumer contract, the punitive damage appears to be entirely appropriate.