The Dutch financial complaints institute Kifid has introduced a new benchmark to determine when bank customers act with gross negligence in cases of unauthorized payments.
The ruling follows a complaint from a Rabobank customer whose phone was stolen during a holiday in Ibiza. The theft resulted in 3,500 euros worth of unauthorized payments executed through the device. The customer reported the incident to police and asked the bank to reimburse the losses, but Rabobank refused, stating that the customer had failed to meet security obligations and had acted with gross negligence.
Kifid confirmed that the payments were indeed unauthorized. The customer demonstrated that the transactions occurred after the phone was taken from her handbag, and the bank could not prove she had consented to the payments. According to Kifid, authentication records alone do not constitute proof of customer consent when technical factors or theft are involved.
Under Dutch law, banks must refund unauthorized payments unless the customer committed fraud or intentionally or with gross negligence violated the bank's security rules. Kifid noted that an earlier decision by its Commission of Appeal had created uncertainty by linking gross negligence to situations where a customer knowingly participated in fraud. The Geschillencommissie therefore formulated a clearer standard: a customer is grossly negligent if they do or omit something in an unusually high degree that a normal, reasonable, and careful payer would never do or omit.
In this case, the payments were made via Apple Pay, which requires Face ID, Touch ID, or a passcode. The customer stated her phone was protected by both Face ID and a passcode, yet could not explain how the code reached the thieves. Kifid concluded that the customer had failed to comply with security rules for Apple Pay payments in an exceptionally serious manner and therefore acted with gross negligence. The claim was rejected, and Rabobank is not obliged to compensate the losses. The customer may still appeal the decision.
