The Superior Court of Justice (STJ) recently ruled on Special Appeal 2.124.423/SP, a case that brought to light the issue of liability of digital banks in electronic fraud. The appellant sought award of pecuniary damages stemming from the so-called “fake auction scam,” claiming that the ease in creating digital accounts have facilitated the offense. However, STJ dismissed the appeal, ruling out the defendant bank’s strict liability. The decision underscores the need for a balance between financial innovation and security, a topic that becomes increasingly relevant in the context of the advancement of digital banking services.
The growth of digital banks has revolutionized the financial sector, providing accessibility and agility in banking transactions. However, this innovation has also brought challenges, especially as concerns security against electronic fraud. The case reviewed by STJ involved a consumer who believed he had purchased a vehicle in a fraudulent virtual auction, and transferred funds to a bank account opened at a digital bank, allegedly used by the criminals. The appellant alleged that the ease in opening such digital accounts facilitated the accomplishment of the scam, leading to a failure in the provision of the banking service.
The Court of Appeals of São Paulo (TJSP) had already dismissed the request for damages, pointing out that the bank could not be held liable, as it had adopted procedures consistent with the regulations applicable for the opening of digital accounts. The decision was upheld by STJ, which considered that the financial institution did not fail to fulfill its regulatory duties. According to the position of Reporting Justice Nancy Andrighi, Central Bank Resolution No. 4.753/19 establishes that financial institutions should check and validate the identity of account holders, but does not specify which documents should be required for this process. As the bank complied with the regulatory requirements, failure in service provision cannot be attributed.
In addition, STJ ruled out the application of Precedent 479, which provides for the strict liability of financial institutions for fraud and offenses committed by third parties in the scope of banking operations. The Superior Court held the position that, under the facts of the case, the relationship between the victim and the bank was indirect, as the consumer was not an account holder with the financial institution. Thus, there would be no duty to monitor the transactions in question, which set the case in question apart from other precedents in which the banks’ liability was recognized.
The decision was not unanimous. Justices Moura Ribeiro and Humberto Martins diverged from the majority opinion, arguing that the activity’s risk theory should be applied to hold the bank liable. For them, the financial institution, by supplying a service that can be used for fraud, undertakes the risks arising from this activity, and should be liable for the loss caused to consumers.
The disposition of Special Appeal 2.124.423/SP supports the STJ’s tendency to restrict the strict liability of digital banks in electronic fraud cases, imposing on the consumer a greater duty of caution when carrying out financial transactions. This poses a challenge for users of these services, who should devote particular attention when making payments and transfers, especially in online transactions.
However, the decision highlights the need for regulatory improvement to ensure a balance between technological innovation and security. The increasing digitization of the banking sector requires institutions to continuously improve their fraud prevention mechanisms without hindering the financial inclusion promoted by digital banks.
The case analyzed by STJ illustrates the complexities involved in holding financial institutions liable in the digital environment. Although the decision was favorable to the bank, the debate on the liability of digital banks in electronic fraud remains open, requiring constant adjustment of the legal system to the new realities of the financial market.
Available in: https://www.conjur.com.br/2025-mar-22/responsabilidade-dos-bancos-digitais-nos-golpes-virtuais-do-resp-2-124-423-sp/
Autor: Daniel Feitosa Naruto • email: daniel.naruto@ernestoborges.com.br • Tel.: +55 67 3389 0123
