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In, fraud is to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud itself can be a (i.e., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compensation), a (i.e., a fraud perpetrator may be prosecuted and imprisoned by governmental authorities) or it may cause no loss of money, property or legal right but still be an element of another civil or criminal wrong. The purpose of fraud may be monetary gain or other benefits, such as obtaining a passport or travel document, driver's license or by way of false statements.

A is a distinct concept that involves deliberate deception without the intention of gain or of materially damaging or depriving a victim.

Contents

As a civil wrong[]

In common law jurisdictions, as a civil wrong, fraud is a. While the precise definitions and requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort generally are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact does rely, to the harm of the victim. Proving fraud in a court of law is often said to be difficult.[] That difficulty is found, for instance, in that each and every one of the elements of fraud must be proven, that the elements include proving the states of mind of the perpetrator and the victim, and that some jurisdictions require the victim to prove fraud by.[]

The remedies for fraud may include rescission (i.e., reversal) of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, to punish or deter the misconduct, and possibly others.[]

In cases of a fraudulently induced contract, fraud may serve as a in a for or of.

Fraud may serve as a basis for a court to invoke its.

As a criminal offence[]

In common law jurisdictions, as a criminal offence, fraud takes many different forms, some general (e.g., theft by false pretense) and some specific to particular categories of victims or misconduct (e.g.,,, ). The elements of fraud as a crime similarly vary. The requisite elements of perhaps most general form of criminal fraud, theft by false pretense, are the intentional deception of a victim by false representation or pretense with the intent of persuading the victim to part with property and with the victim parting with property in reliance on the representation or pretense and with the perpetrator intending to keep the property from the victim.

By region[]

Canada[]

Section 380(1) of the provides the general definition for fraud in Canada:

380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction, where the value of the subject-matter of the offence does not exceed five thousand dollars.

In addition to the penalties outlined above, the court can also issue a prohibition order under s. 380.2 (preventing a person from "seeking, obtaining or continuing any employment, or becoming or being a volunteer in any capacity, that involves having authority over the real property, money or valuable security of another person"). It can also make a restitution order under s. 380.3.

The Canadian courts have held that the offence consists of two distinct elements:

  • A prohibited act of deceit, falsehood or other fraudulent means. In the absence of deceit or falsehood, the courts will look objectively for a "dishonest act"; and
  • The deprivation must be caused by the prohibited act, and deprivation must relate to property, money, valuable security, or any service.

The has held that deprivation is satisfied on proof of detriment, prejudice or risk of prejudice; it is not essential that there be actual loss. Deprivation of, in the nature of a or copyrighted material that has commercial value, has also been held to fall within the scope of the offence.

China[]

Zhang Yingyu's story collection (ca. 1617) testifies to rampant commercial fraud, especially involving itinerant businessmen, in late Ming China. The journal Science reported in 2017 that fraud is rife in Chinese academia, resulting in numerous article retractions and harm to China's international prestige.The Economist, CNN, and other media outlets regularly report on incidents of fraud or bad faith in Chinese business and trade practices.Forbes cites cybercrime as a persistent and growing threat to Chinese consumers.

United Kingdom[]

England, Wales, and Northern Ireland[]

"Half of all UK companies say that they have been the victim of fraud or of economic crime in the last two years [2016-2018], according to a major survey conducted by professional services firm PwC."

reported in 2016 that the estimated value lost through fraud in the UK was £193 billion a year.

In January 2018 the reported that the value of UK fraud hit a 15-year high of £2.11bn in 2017 according to a study. The article said that the accountancy firm BDO examined reported fraud cases worth more than £50,000 and found that the total number rose to 577 in 2017, compared with 212 in 2003. The study found that the average amount stolen in each incident rose to £3.66m, up from £1.5m in 2003.

As at November 2017 Fraud is the most common criminal offence in the UK according to a study by Crowe Clark Whitehill, Experian and the Centre for Counter Fraud Studies. The study suggests the UK loses over £190 billion per year to fraud. £190 billion is more than 9% of the UK’s projected GDP for 2017 ($2,496 (£2,080) billion according to Statistics Times). The estimate for fraud in the UK figure is more than the entire GDP of countries such as Romania, Qatar and Hungary.

According to another review by the UK anti-fraud charity (FAP), business fraud accounted for £144bn, while fraud against individuals was estimated at £9.7bn. The FAP has been particularly critical of the support available from the police to victims of fraud in the UK outside of London. Although victims of fraud are generally referred to the UK's national fraud and cyber crime reporting centre,, the FAP found that there was "little chance" that these crime reports would be followed up with any kind of substantive law enforcement action by UK authorities, according to the report.

In July 2016 it was reported that fraudulent activity levels in the UK increased in the 10 years to 2016 from £52 billion to £193bn. This figure would be a conservative estimate, since as the former commissioner of the, Adrian Leppard, has said, only 1 in 12 such crimes are actually reported. Donald Toon, director of the NCA's economic crime command, stated in July 2016: "The annual losses to the UK from fraud are estimated to be more than £190bn". Figures released in October 2015 from the Crime Survey of England and Wales found that there had been 5.1 million incidents of fraud in England and Wales in the previous year, affecting an estimated one in 12 adults and making it the most common form of crime.

Also in July 2016, the (ONS) stated "Almost six million fraud and cyber crimes were committed last year in England and Wales and estimated there were two million computer misuse offences and 3.8 million fraud offences in the 12 months to the end of March 2016." Fraud affects one in ten people in the UK. According to the ONS most frauds relate to bank account fraud. These figures are separate from the headline estimate that another 6.3 million crimes (distinct from frauds) were perpetrated in the UK against adults in the year to March 2016.

Fraud is apparently low on the list UK law enforcement priorities. Controversially, the crime does not feature on a new "Crime Harm Index" published by the. Michael Levi, professor of criminology at Cardiff University, remarked in August 2016 that it was ‘deeply regrettable’ fraud is being left out of the first index despite being the most common crime reported to police in the UK. Professor Levi said ‘If you’ve got some categories that are excluded, they are automatically left out of the police’s priorities.’. The Chief of the (NAO), Sir Anyas Morse has also said “For too long, as a low-value but high-volume crime, online fraud has been overlooked by government, law enforcement and industry. It is now the most commonly experienced crime in England and Wales and demands an urgent response.”

Fraud Act[]

Main article:

The Fraud Act 2006 (c 35) is an of the. It affects and. It was given on 8 November 2006, and came into effect on 15 January 2007.

The Act gives a statutory definition of the criminal offence of fraud, defining it in three classes—fraud by false representation, fraud by failing to disclose information, and fraud by abuse of position. It provides that a person found guilty of fraud is liable to a fine or imprisonment for up to twelve months on (six months in ), or a fine or imprisonment for up to ten years on conviction on. This Act largely replaces the laws relating to obtaining property by deception, obtaining a pecuniary advantage and other offences that were created under the.

Serious Fraud Office[]

The is an arm of the Government of the United Kingdom, accountable to the Attorney-General.

National Fraud Authority[]

The (NFA) is the government agency co-ordinating the counter-fraud response in the UK.

Cifas – the UK's leading fraud prevention service[]

Main article:

Cifas is the UK's leading fraud prevention service, a not-for-profit membership organisation for all sectors that enables organisations to share and access fraud data using their databases. Cifas is dedicated to the prevention of fraud, including internal fraud by staff, and the identification of financial and related crime.

A Cifas study found that the number of reported cases of identity fraud jumped by 57 per cent between 2014 and 2015. Drawing from its reporting database of 261 organisations, Cifas found that 148,463 people reported having their identity stolen in 2015, up from 94,492 the previous year. The rise of social media has been blamed. Cifas has warned that social media sites such as, and are becoming a “hunting ground” for fraudsters.

In July 2016 the BBC referred to a recently published Cifas report which estimated the annual cost of fraud in the UK was £193bn – equal to nearly £3,000 per head of population.

In March 2017, Cifas reported that identity fraud had reached "record levels", with 173,000 cases recorded to its fraud database in 2016 – the highest number ever recorded by members of Cifas. That trend continued through 2017, with Cifas reporting more than 89,000 cases of identity fraud in the first six months of the year.

Cifas data from 2016 and 2017 also highlighted the growing issue of '' – people who allow their bank accounts to be used to. Cifas reported that the number of young people (18-24-year-olds) allowing their to be used to transfer the proceeds of crime had risen by an unprecedented 75 per cent in the last year.

United States[]

Criminal fraud[]

The proof requirements for criminal fraud charges in the United States are essentially the same as the requirements for other crimes: guilt must be proved beyond a. Throughout the United States fraud charges can be misdemeanors or felonies depending on the amount of loss involved. High value frauds can also include additional penalties. For example, in California losses of $500,000 or more will result in an extra two, three, or five years in prison in addition to the regular penalty for the fraud.

The U.S. government's 2006 fraud review concluded that fraud is a significantly under-reported crime, and while various agencies and organizations were attempting to tackle the issue, greater co-operation was needed to achieve a real impact in the public sector. The scale of the problem pointed to the need for a small but high-powered body to bring together the numerous counter-fraud initiatives that existed.

According to, application fraud rates in the United States has been steadily rising over the past few years. This type of fraud expected to double from about $2-3 billion in 2015 to $4-6 billion in 2017.

Civil fraud[]

Although elements may vary by jurisdiction and the specific allegations made by a plaintiff who files a lawsuit that alleged fraud, typical elements of a fraud case in the United States are that:

  1. somebody misrepresents a material fact in order to obtain action or forbearance by another person,
  2. the other person relies upon the misrepresentation, and
  3. the other person suffers injury as a result of the act or forbearance taken in reliance upon the misrepresentation.

To establish a civil claim of fraud, most jurisdictions in the United States require that each element of a fraud claim be plead with particularity and be proved by a, meaning that it is more likely than not that the fraud occurred. Some jurisdictions impose a higher evidentiary standard, such as Washington State's requirement that the elements of fraud be proved with clear, cogent, and convincing evidence (very probable evidence), or Pennsylvania's requirement that common law fraud be proved by clear and convincing evidence.

The measure of damages in fraud cases is normally computed using one of two rules:

  1. the "benefit of bargain" rule, which allows for recovery of damages in the amount of the difference between the value of the property had it been as represented and its actual value; or
  2. out-of-pocket loss, which allows for the recovery of damages in the amount of the difference between the value of what was given and the value of what was received.

may be allowed if shown to have been proximately caused by defendant's fraud and the damage amounts are proved with.

Many jurisdictions permit a plaintiff in a fraud case to seek or exemplary damages.

The typical organization loses five percent of its annual revenue to fraud, with a median loss of $160,000. Frauds committed by owners and executives were more than nine times as costly as employee fraud. The industries most commonly affected are banking, manufacturing, and government.

Types of fraudulent acts[]

The highly decorated fake uniform worn by a man a "Marine" caught by two gunnery sergeants at Times Square in New York City, New York
A possibly fraudulent "work from home" advertisement

See also:

Fraud can be committed through many media, including,,, and the ( and ). International dimensions of the web and ease with which users can hide their location, the difficulty of checking identity and legitimacy online, and the simplicity with which can divert browsers to dishonest sites and steal details have all contributed to the very rapid growth of Internet fraud. In some countries, tax fraud is also prosecuted under false billing or tax forgery. There have also been fraudulent "discoveries", e.g., in, to gain prestige rather than immediate monetary gain.[]

Anti-fraud movements[]

Beyond laws that aim at prevention of fraud, there are also governmental and non-governmental organizations that aim to fight fraud. Between 1911 and 1933, 47 states adopted the so-called status. These laws were enacted and enforced at the state level and regulated the offering and sale of to protect the public from fraud. Though the specific provisions of these laws varied among states, they all required the registration of all securities offerings and sales, as well as of every U.S. and brokerage firm. However, these Blue Sky laws were generally found to be ineffective. To increase public trust in the capital markets the,, established the (SEC). The main reason for the creation of the SEC was to regulate the and prevent relating to the offering and sale of securities and corporate reporting. The SEC was given the power to license and regulate stock exchanges, the companies whose securities traded on them, and the brokers and dealers who conducted the trading.

Detection[]

A fraudulent Manufacturer's Suggested Retail Price on a speaker

Further information:

For detection of fraudulent activities on the large scale, massive use of (online) is required, in particular or forensic analytics. Forensic analytics is the use of electronic data to reconstruct or detect financial fraud. The steps in the process are data collection, data preparation, data analysis, and the preparation of a report and possibly a presentation of the results. Using computer-based analytic methods wider goal is the detection of fraud, errors, anomalies, inefficiencies, and biases which refer to people gravitating to certain dollar amounts to get past internal control thresholds.

The analytic tests usually start with high-level data overview tests to spot highly significant. In a recent purchasing card application these tests identified a purchasing card transaction for 3,000,000 Costa Rica Colons. This was neither a fraud nor an error, but it was a highly unusual amount for a purchasing card transaction. These high-level tests include tests related to Benford's Law and possibly also those statistics known as descriptive statistics. These high-tests are always followed by more focused tests to look for small samples of highly irregular transactions. The familiar methods of and can also be used to detect fraud and other irregularities. Forensic analytics also includes the use of a fraud risk-scoring model to identify high risk forensic units (customers, employees, locations, insurance claims and so on). Forensic analytics also includes suggested tests to identify financial statement irregularities, but the general rule is that analytic methods alone are not too successful at detecting financial statement fraud.

Notable fraudsters[]

  • single fraud investigation service september 2013 , lied about bank loans as a banker so that some customers to the bank went to prison; he was later sentenced to prison, but managed to get a pardon and kept his job
  • , American who wrote bad checks and falsely represented himself as a qualified member of professions such as airline pilot, doctor, attorney, and teacher; the film is based on his life
  • , British doctor and suspected, but only found guilty of forging wills and prescriptions
  • , founder of ; has criminal convictions on 17 counts and about $1 billion worth of civil judgments against him stemming from fraudulent accounting practices at that company
  • , "The Wolf of Wall Street"; swindled over $200 million via a boiler room operation; the film "The Wolf of Wall Street" starring is based on his life and fraudulent activity
  • , pretended to be 's illegitimate daughter to get loans
  • fraud; Columbia/HCA pleaded guilty to 14 felony counts and paid out more than $2 billion to settle lawsuits arising from the fraud The company's board of directors forced then–Chairman and CEO to resign at the beginning of the federal investigation; Scott was subsequently elected in 2010
  • , self-styled "Lord"; nicknamed "Fast Eddie" and "Lord of Fraud"; from 2005 to 2009 was the "ringmaster" of a series of advance-fee fraud schemes that defrauded dozens of individuals out of millions of pounds; is said to have made £34.5 million through various frauds
  • , managing founder of attorney firm Dreir LLP, a $700 million Ponzi scheme
  • , defrauded Spanish banks and then gave away the loaned money to anti-growth organizations
  • , founder of, which inflated its asset statements by about $11 billion
  • , banker from the and former President of Banco Intercontinental; sentenced in 2007 to 10 years in prison for a U.S. $2.2 billion fraud case that drove the Caribbean nation into economic crisis in 2003
  • , American former, convicted in 2002 of insurance fraud worth $208 million, racketeering and money laundering
  • , former hedge fund manager; ran the former fraudulent ; faked suicide to avoid jail
  • , German fraudster and forger responsible for the ""
  • , American businessman who built energy company ; one of the highest paid in the U.S. until he was ousted as chairman and convicted of fraud and conspiracy, although, as a result of his death, his conviction was vacated
  • , English trader whose unsupervised speculative trading caused the collapse of Barings Bank
  • , ran one of the biggest ($311 million) and longest running Ponzi schemes (20 years) in U.S. history
  • , Scottish con man; tried to attract investment and settlers for the non-existent country of Poyais
  • , creator of a $65 billion Ponzi scheme, the largest investor fraud ever attributed to a single individual
  • , American con artist, card cheat and pickpocket; from age approximately 14 through 21, bilked dozens of casinos, corporations and at least one Mafia crime family out of untold sums
  • , professional con man during U.S. President 's administration
  • , ZZZZ Best scam
  • , founder of, which ultimately cost its investors more than $1 billion
  • , conned the town of by promoting a circus that never came
  • , former boy-band manager and operator of a $300 million Ponzi scheme using two shell companies
  • , American impersonator who wrote bad checks
  • , American masquerading as a business manwho turned out to be a con man; former CEO and chairman of ; resigned his position as CEO in 2008 amid mounting criminal investigations; later convicted for turning Petters Group Worldwide into a $3.65 billion Ponzi scheme; sentenced to 50 years in federal prison
  • ,
  • , German mailman; worked as a psychiatrist in different hospitals
  • , forged documents to print 100,000,000 PTE in official banknotes (adjusted for inflation, it would be worth about US$150 million today)
  • , cable television entrepreneur, co-founder of and owner of the hockey team; defrauded investors of over $2 billion and was sentenced to a 12-year term in federal prison
  • , a Rockefeller impersonator who defrauded celebrities
  • , disbarred lawyer from Ft. Lauderdale, Florida; perpetrated a Ponzi scheme which defrauded investors of over $1 billion
  • , best known as a check, stocks and bonds forger; became notorious in the 1960s throughout the 1990s as a "Great Impostor" with over 100 aliases, and earned millions from such
  • , struggling businessman who faked massive success in an attempt to buy out the of the
  • , self-styled banker; sold fake certificates of deposit to people in many countries, raking in $7 billion to $8 billion over decades
  • , the last Postmaster-General of the UK and MP; faked his death to marry his mistress
  • , American writer and billiards promoter; convicted of fraud and larceny in 1991; known for a series of late-night infomercials and his series of books about "Natural Cures 'They' Don't Want You to Know About"
  • , stole from the in the 1930s

Related[]

Apart from fraud, there are several related categories of intentional that may or may not include the elements of personal gain or damage to another individual:

  •   which criminalizes false representation of having been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States

See also[]

References[]

  1. . Law.com. Retrieved 2016-01-27. 
  2. . Journal of Accountancy. Retrieved 2013-12-18. 
  3. . Judicial Council of California. Retrieved 2013-12-27. 
  4. . Judicial Council of California. Retrieved 2013-12-27. 
  5. . Laws-lois.justice.gc.ca. Retrieved 2013-12-05. 
  6. . Laws-lois.justice.gc.ca. Retrieved 2013-12-05. 
  7. Tony Wong. (Pdf).. Retrieved 2012-04-22. 
  8. R. v. Olan et al., [1978] 2 S.C.R. 1175. Full text of decision at
  9. R. v. Stewart, [1988] 1 S.C.R. 963. Full text of decision at
  10. . BBC. 25 May 2016. Retrieved 6 September 2017. 
  11. Fraud Advisory Panel (2016). (PDF). 
  12. . www.out-law.com. Retrieved 2016-09-18.  heutzutage werden bekanntschaften gesucht
  13. . BBC News. 2016-07-18. Retrieved 2016-09-18. 
  14. . BBC News. 2016-07-21. Retrieved 2016-09-18. 
  15. Beckford, Martin (21 August 2016).. Daily Mail Online. Associated Newspapers Ltd. Retrieved 18 September 2016. 
  16. . The Guardian. Press Association. 30 June 2017. Retrieved 6 September 2017. 
  17. The Fraud Act 2006 (Commencement) Order 2006 - SI 2006 No. 3200 (C.112)  
  18. . www.miltonkeynes.co.uk. Retrieved 2016-09-18. 
  19. . BBC News. 2016-07-05. Retrieved 2016-09-18. 
  20. ActionFraud (2017-03-15).. Action Fraud. Retrieved 2018-02-08. 
  21. . Sky News. Retrieved 2018-02-08. 
  22. . The Independent. 2017-11-27. Retrieved 2018-02-08. 
  23. . California Legislative Information. California State Legislature. Retrieved 9 August 2017. If the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than five hundred thousand dollars ($500,000), the additional term of punishment shall be two, three, or five years in the state prison. 
  24. . FBI. Federal Bureau of Investigations. Retrieved 6 September 2017. 
  25. Scully, Matt (2017-05-10).. . Retrieved 2017-05-12. 
  26. Larson, Aaron (8 July 2016).. ExpertLaw. Retrieved 6 September 2017. 
  27. See, e.g., . Google Scholar. Google. Retrieved 6 September 2017. 
  28. . Washington Pattern Jury Instructions - Civil. West. Retrieved 24 May 2017. 
  29. . Google Scholar. Google. Retrieved 24 May 2017. 
  30. Chang, Stanley Y. (April 1994).. Retrieved 6 September 2017. 
  31. Koerner, Theodore G. (Jan 1958).. Michigan Law Journal. 56 (3): 448. Retrieved 24 May 2017. 
  32. .. 2010. Archived from on July 7, 2011. 
  33. "Tax Fraud and the Problem of a Constitutionality Acceptable Definition of Religion". BJ Casino. American Criminal Law. Rev., 1987
  34. . sec.gov. 21 February 2003. 
  35. . Seclaw.com. 2007-07-07. Retrieved 2013-12-05. 
  36. . gwu.edu. 
  37. . learn.advfn.com. 
  38. . analytics-magazine.org. July–August 2013. 
  39. Nigrini, Mark (June 2011).. Hoboken, NJ: John Wiley & Sons Inc.  . 
  40. Biography.com Editors.. Retrieved 2015-10-08. CS1 maint: Extra text: authors list ()
  41. . BBC. Retrieved 2015-10-08. 
  42. Pinder, Jeanne B. (1993-07-21).. The New York Times.  . Retrieved 2016-09-18. 
  43. . New York Times. Retrieved 2016-07-15. 
  44. (Press release),, June 26, 2003, retrieved April 11, 2011 
  45. . BBC News. 2011-10-05. Retrieved 2016-09-18. 
  46. . Retrieved 2016-09-18. 
  47. . 2015-11-06. Retrieved 2016-09-18. 
  48. Bowers, Simon (2011-10-05).. The Guardian.  . Retrieved 2016-09-18. 
  49. Evans, Martin (29 July 2014).. The Telegraph. Retrieved 18 September 2016. 
  50. Kokenes, Chris (March 19, 2009),,, retrieved April 10, 2011
  51. Lozano, Juan A. (17 October 2006).. CBS News. Associated Press. Archived from on May 24, 2009. 
  52. Nicole Muehlhausen,, KSTP.com, September 24, 2008. Retrieved October 8, 2008.
  53. February 10, 2009, at the.
  54. Hughes, Art (December 2, 2009).. .. Retrieved December 10, 2009. 

Further reading[]

  • Fraud: An American History from Barnum to Madoff.   (2017). Princeton University Press.
  • Frauds, Spies, and Lies – and How to Defeat Them.   (2006). ASP Press.
  • Green, Stuart P. Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime. Oxford University Press, 2006.  
  • Podgor, Ellen S. Criminal Fraud, (1999) Vol, 48, No. 4 American Law Review 1.
  • ( ) by Eamon Dillon, published September 2008 by Merlin Publishing
  • Zhang, Yingyu. . Columbia University Press, 2017.  

External links[]

By  and

Pursuant to several provisions of the French Code Monétaire et Financier, entities from the banking and financial sector are required to implement processes and strategies to detect, measure and manage operational risks within their group (on a consolidated basis). Fraud prevention/detection systems must be adapted to the entities’ activities and to the nature, scale and complexity of the risks inherent to their business model and organization.

The French data protection authority (CNIL) has just adopted Single Authorization No. AU-054 (the “AU-054”) on July 13, 2017 in order to cover the processing of personal data implemented in relation to these fraud prevention/detection systems. The new AU-054 provides a blanket authorization for entities processing personal data for purposes related to the prevention/detection of external fraud in the banking and financial sector assuming they adhere to a strict set of conditions set forth by the CNIL, the most significant of which are summarized below.

The AU-054, like all CNIL single authorizations, has the critical advantage of allowing entities to self-certify, in a short and simple form, their compliance with the conditions set forth by the CNIL. Fraud prevention systems not meeting those conditions require a specific authorization from the CNIL (a much more complicated and lengthy process).

1. Only certain categories of entities in the banking and financial sector are eligible to self-certify under the AU-054

The AU-054 covers entities from the banking or financial sector which are under the control of the French Autorité de Contrôle Prudentiel et de Résolution in accordance with Article L.511-20-III of the French Code Monétaire et Financier and related regulations.

More specifically, the entities authorized to implement a fraud prevention system under the AU-054 are the following:

  • Credit institutions;
  • Intermediaries in bank operations;
  • Payment service providers;
  • Providers of investment services;
  • Individuals who provide investment services;
  • Investment advisers;
  • Financing companies;
  • E-money institutions;
  • Financial holding companies; and
  • Parent companies of financing companies.

In particular, the AU-054 does not cover fraud prevention systems implemented by insurance, capitalization, reassurance, assistance companies or insurance brokers CMF (these companies must refer to Single Authorization No. AU-039).

In addition, all entities under the control of any of the entities listed above are also eligible to self-certify with the AU-054 when their activities qualify as “related” (“connexes“) within the meaning of Article L.311-2 of the Code Monétaire et Financier. 


2. The AU-054 only covers prevention/detection systems addressing external fraud

The AU-004 covers fraud prevention/detection systems aimed at detecting and qualifying anomalies that qualify as “external fraud“. “External fraud” is defined by Article 324 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms as “any event causing losses related to third party actions aimed at committing fraud or embezzlement of assets, or at violating the law.” External fraud therefore relates to any person that is a party or potential party to a contract (clients, beneficiaries) and any person involved in the performance of contracts (subcontractors, service providers, financial intermediaries…). The AU-054 does not cover internal fraud detection/prevention (i.e., fraud committed by employees or other staff members).

More specifically, the AU-054 states that it covers (i) fraud alerts further to the detection of an anomaly, an incoherence or the reporting of an act likely to be fraudulent, and their analysis by authorized personnel, and (ii) actual or attempted frauds qualified as such by the entity further to investigation by authorized personnel. It further provides some details regarding authorized purposes by referring to:

  • The detection of acts performed in the context of the execution, management and performance of contracts that show some kind of anomaly or incoherence;
  • The management and analysis of alerts coming from various information sources (internal control processes, client claims, judicial orders, etc.);
  • The compilation of lists of persons duly identified as fraudsters or attempted fraudsters further to investigations.

The AU-054 details the various categories of fraudulent activities that can be covered by (and reported through) a fraud prevention/detection system within its scope. These categories notably include fraud relating to the payment method, ID fraud, credit fraud, etc. If the fraud prevention/detection system aims at detecting certain categories of frauds that are not expressly listed in the AU-004, a specific impact assessment analysis must be carried out.

In addition, the AU-054 clearly states that fraud prevention systems may lead to punctual interconnections with data processed for other purposes, including notably (among others): client and prospects management; the execution, management and performance of banking and financial services agreements; the management of contractual relationships with intermediaries, service providers and others; money-laundering and terrorism financing prevention; and whistleblowing systems.

3. The broad range of personal data that can be processed under the AU-054

Assuming they are necessary for the purposes covered by the AU-054, only the following categories of personal data can be collected and processed through fraud prevention/detection systems:

  • Data relating to the execution, management and performance of banking and financial services agreements and to the management of the commercial relationship;
  • Identification data relating to the parties to the contract (client, actual beneficiaries) and prospects;
  • Data relating to personal, family and professional situations, to economic and financial information and life habits in relation to the execution of banking and financial services agreements;
  • Data relating to commercial operations and to the management of the commercial relationship;
  • Data relating to anomalies, incoherence and reports likely to reveal a fraud;
  • Data relating to fraud investigations, instruction and assessment of the scope and nature of the suspected or actual fraud and of its consequences;
  • Data relating to risk and damages assessment;
  • Identification data relating to the individuals involved in the detection and management of fraud;
  • Data relating to financial transactions, payment methods, etc.;
  • Browsing and connexion data (including location data and device related data) collected in the context of the agreements in force; and
  • Data relating to the management of contractual relationships with providers of services or of operational tasks that are “essential” or “important” within the meaning of applicable laws, and with banking operations and payment services intermediaries, subcontractors and agents.

 

4. Strict requirements regarding access rights and management of the fraud prevention/detection system

Generally, the system and related data may only be accessed by specifically authorized personnel subject to ethical and confidentiality obligations.

More specifically, information relating to fraud alerts (suspected frauds) can only be accessed by:

  • Staff members in charge of fraud prevention within the entity or another entity of the same group when acting on behalf of such entity;
  • Staff members in charge of money-laundering and terrorism financing prevention within the entity;
  • Investigators, auditors and experts, on a punctual basis during investigations;
  • Staff members from the entity’s compliance department in charge of internal control or of the litigation department; or
  • Public authorities as authorized under the law.

In case of actual (proven) frauds, the information can only be accessed by:

  • Staff members in direct contact with the clients;
  • Staff members in charge of fraud prevention within the entity or another entity of the same group when acting on behalf of such entity;
  • Staff members in charge of money-laundering and terrorism financing prevention within the entity;
  • The entity’s top management, the operational risks department, the compliance department in charge of internal control or the litigation department, the legal department, staff members in charge of internal control, audit, inspection and financial security;
  • Providers of services or of operational tasks that are “essential” or “important” in accordance with applicable laws, with banking operations and payment services intermediaries, as soon as they are concerned by the fraud or are involved in the management of the matter;
  • Investigators, auditors and experts, on a punctual basis during investigations;
  • As the case may be, fraud victims or their agents; or
  • Public authorities as authorized under the law.

In addition, the information collected through the fraud detection systems may be shared by the entity with other entities of its group under specific conditions, which are detailed in the AU-054.

5. Other relevant requirements to keep in mind

The AU-054 reiterates that data subjects must be informed of the characteristics of the processing of their personal data in accordance with applicable law. This notice must be provided upon execution of the service agreement, and if, after some investigation, the fraud is confirmed, some decisions with legal consequences are made on that basis and the data subject is listed as potential fraudster for future reference.

It also reiterates that no decision with legal consequences can be made based only on an automated fraud prevention system. As a consequence, any fraud alert generated by these systems must be followed up by a non-automated analysis and by additional non-automated investigation, if necessary. In addition, any individual subject of a fraud alert must be able to respond if a decision with legal consequences on him/her is made in relation to the execution or performance of a contract.

In addition to general security and confidentiality obligations, the AU-054 requires entities to define a security policy specifically adapted to the risks raised by fraud prevention/detection systems. Specific requirements as to the content of this policy are detailed in the AU-054.

In terms of data retention, alerts must be “qualified” (i.e. be confirmed or not) within 12 months after they arose. Any alert that is not relevant must be deleted immediately. If an alert has not been investigated and qualified after 12 months, it must be deleted. Data related to confirmed fraud can be stored for 5 years maximum (or until the end of the judicial proceedings where relevant).

Lastly, the AU-054 states that transfers of personal data to non EU countries that are not members of the EEA can only be performed if (i) the destination country has been considered as providing adequate protection by the EU Commission, or (ii) the recipient is Privacy Shield certified, or (iii) Model Contractual Clauses or Binding Corporate Rules are in place, or (iv) they are carried out for the purpose of performing contracts or enforcing warranties or rights before a court (it being specified that this can only apply to non-massive transfers happening on a punctual basis).

For any additional information, please contact  (Partner, Paris) or  (Consultant, Paris).


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Zahra Doejune 2, 2017
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Zahra Doejune 2, 2017
Morbi gravida, sem non egestas ullamcorper, tellus ante laoreet nisl, id iaculis urna eros vel turpis curabitur.
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