Deepfakes in International Arbitration: How Should Tribunals Treat Video Evidence and Allegations of Technological Tampering?
Markus Burgstaller, Scott Macpherson · The Journal of World Investment & Trade · 2021
Abstract Deepfakes can be described as videos of people doing and saying things that they have not done or said. Their potential use in international arbitration leads to two competing threats. Tribunals may be conscious of the difficulties in proving that a deepfake is, in fact, fake. If the ‘clear and convincing evidence’ standard of proof is applied, it may be very difficult, if not impossible, to prove that a sophisticated deepfake is fake. However, the burgeoning awareness of deepfakes may render tribunals less inclined to believe what they see on video even in circumstances in which the video before it is real. This may encourage parties to seek to deny legitimate video evidence as a deepfake. The ‘balance of probabilities’ standard, while not perfect, would appear to address this concern. In order to properly assess deepfakes, tribunals should apply this standard while assessing both technical and circumstantial evidence holistically.