Cryptocurrency fraud victims often face a dead end: the scammers are anonymous, operating from untraceable locations, and the cryptocurrency is already moved beyond recovery. However, there may be another avenue: directing claims against the banks through which the fraudulent transfers were made.
Art. 46 of the Payment Services Act
This provision provides that a payment service provider (bank) must return the amount of an unauthorized payment transaction to the payer immediately, and in any case no later than by the end of the next business day. The key question is whether a fraud victim’s transfer to a scammer can be considered “unauthorized.”
The legal argument
The core argument is that while the victim technically authorized the transfer, the authorization was obtained through fraud (deception, manipulation, social engineering). There is a growing body of case law, particularly in the UK and EU, supporting the position that banks have obligations beyond simply executing customer orders – they must also implement effective fraud prevention measures and may be liable when those measures fail.
Bank’s duty of care
Banks, as institutions regulated under AML laws, have specific obligations to detect and prevent suspicious transactions. When a customer makes multiple high-value transfers to accounts in high-risk jurisdictions, and the pattern matches known fraud typologies, the bank arguably has a duty to intervene – by flagging the transaction, contacting the customer, or temporarily blocking the transfer.
Practical assessment
While this legal avenue is not yet well-established in Polish courts, it represents a promising direction for victims. The success depends on:
- The specific circumstances of the fraud
- Whether the bank’s systems should have detected the suspicious activity
- The applicable AML and consumer protection regulations
- Available case law precedents
I believe this area of law will develop significantly in coming years as cryptocurrency fraud continues to grow and courts are forced to address the responsibilities of financial institutions in preventing it.
Paweł Osiński
Attorney, expert in cryptocurrency fraud and banking law