Are Payment Card Contracts Unfair?

While US bank customers are almost completely protected against fraudulent transactions, in Europe banks are entitled to refuse to reimburse victims of fraud under certain circumstances. The EU Payment Services Directive (PSD) is supposed to protect customers but if the bank can show that the customer has been “grossly negligent” in following the terms and conditions associated with their account then the PSD permits the bank to pass the cost of any fraud on to the customer. The bank doesn’t have to show how the fraud happened, just that the most likely explanation for the fraud is that the customer failed to follow one of the rules set out by the bank on how to protect the account. To be certain of obtaining a refund, a customer must be able to show that he or she complied with every security-related clause of the terms and conditions, or show that the fraud was a result of a flaw in the bank’s security.

The bank terms and conditions, and how customers comply with them, are therefore of critical importance for consumer protection. We set out to answer the question: are these terms and conditions fair, taking into account how customers use their banking facilities? We focussed on ATM payments and in particular how customers manage PINs because ATM fraud losses are paid for by the banks and not retailers, so there is more incentive for the bank to pass losses on to the customer. In our paper – “Are Payment Card Contracts Unfair?” – published at Financial Cryptography 2016 we show that customers have too many PINs to remember them unaided and therefore it is unrealistic to expect customers to comply with all the rules banks set: to choose unguessable PINs, not write them down, and not use them elsewhere (even with different banks). We find that, as a result of these unrealistic expectations, customers do indeed make use of coping mechanisms which reduce security and violate terms and conditions, which puts them in a weak position should they be the victim of fraud.

We surveyed 241 UK bank customers and found that 19% of customers have four or more PINs and 48% of PINs are used at most once a month. As a result of interference (one memory being confused with another) and forgetting over time (if a memory is not exercised frequently it will be lost) it is infeasible for typical customers to remember all their bank PINs unaided. It is therefore inevitable that customers forget PINs (a quarter of our participants had forgot a 4-digit PIN at least once) and take steps to help them recall PINs. Of our participants, 33% recorded their PIN (most commonly in a mobile phone, notebook or diary) and 23% re-used their PIN elsewhere (most commonly to unlock their mobile phone). Both of these coping mechanisms would leave customers at risk of being found liable for fraud.

Customers also use the same PIN on several cards to reduce the burden of remembering PINs – 16% of our participants stated they used this technique, with the same PIN being used on up to 9 cards. Because each card allows the criminal 6 guesses at a PIN (3 on the card itself, and 3 at an ATM) this gives criminals an excellent opportunity to guess PINs and again leave the customer responsible for the losses. Such attacks are made easier by the fact that customers can change their PIN to one which is easier to remember, but also probably easier for criminals to guess (13% of our participants used a mnemonic, most commonly deriving the PIN from a specific date). Bonneau et al. studied in more detail exactly how bank customers select PINs.

Finally we found that PINs are regularly shared with other people, most commonly with a spouse or partner (32% of our participants). Again this violates bank terms and conditions and so puts customers at risk of being held liable for fraud.

Holding customers liable for not being able to follow unrealistic, vague and contradictory advice is grossly unfair to fraud victims. The Payment Services Directive is being revised, and in our submission to the consultation by the European Banking Authority we ask that banks only be permitted to pass fraud losses on to customers if they use authentication mechanisms which are feasible to use without undue effort, given the context of how people actually use banking facilities in normal life. Alternatively, regulators could adopt the tried and tested US model of strong consumer protection, and allow banks to manage risks through fraud detection. The increased trust from this approach might increase transaction volumes and profit for the industry overall.


“Are Payment Card Contracts Unfair?” by Steven J. Murdoch, Ingolf Becker, Ruba Abu-Salma, Ross Anderson, Nicholas Bohm, Alice Hutchings, M. Angela Sasse, and Gianluca Stringhini will be presented at Financial Cryptography and Data Security, Barbados, 22–26 February 2016.