@misc{9226074,
  abstract     = {{Technological development, particularly within AI, has enabled production of so-called deepfakes, i.e., artificially generated or manipulated material that may appear highly authentic. At the same time, digitalisation has made digital evidence central in legal proceedings. This creates new legal challenges, since convincing false material may undermine the reliability of digital evidence. 
The purpose of this essay is to contribute to knowledge about how Swedish procedural law deals with evidence such as AI-generated and/or AI-manipulated deepfakes, and to analyse whether this framework is compatible with both formal and material legal certainty. Using a legal dogmatic method, the essay analyses deepfake evidence primarily in the light of the free consideration of evidence in Chapter 35, Section 1, first paragraph of the Swedish Procedural Code (SWE: 35 kap. 1 § första stycket RB). Peczenik’s definition of formal and material legal certainty is used as the theoretical starting point for the analysis of legal certainty.
The analysis shows that there is generally no obstacle to presenting deepfake evidence, under the principle of free production of evidence. Issues relating to deepfakes instead arise through objections by the parties or within the evaluation of evidence. Furthermore, analogies drawn from related practice show that there is no uniform method for handling suspected deepfake evidence. The legal position is therefore unclear. Deepfakes have also changed the conditions for the free evaluation of evidence, since it can no longer be assumed that audio, image and video evidence faithfully depict a real event. As a result, the assessment of digital evidence’s authenticity has become more difficult.
At present, there is no uniform method for the legal handling of deepfake evidence. The system therefore suffers from a lack of predictability, which is problematic from a formal legal certainty perspective. The essay argues that, under the current legal framework, deepfake evidence can be addressed either as a matter of burden of proof and evidentiary requirement, or as a matter of evaluation of evidence. Regardless of classification, however, significant issues of material legal certainty remain. If deepfake evidence is treated as a matter of burden of proof and evidentiary requirement, there is a risk that the assessment becomes far too unnuanced, while asymmetries between the parties may be reinforced. If it is instead treated within the evaluation of evidence, there is a significant risk of incorrect evidentiary evaluations. The current system therefore appears inadequate if the aim is to ensure legal certainty in disputes where deepfake evidence may occur. However, the essay does not argue for a legislative change of the free consideration of evidence. Instead, it concludes that deepfake evidence should be dealt with within the framework of the free evaluation of evidence, combined with further guidance on how such evaluation should be carried out, as well as measures to strengthen competence and improve access to appropriate tools.}},
  author       = {{Deuschl, Ebba}},
  language     = {{swe}},
  note         = {{Student Paper}},
  title        = {{När beviset inte kan litas på – En utredande uppsats om deepfakes och rättssäkerhet i svensk processrätt}},
  year         = {{2026}},
}