Deepfakes and altered documents in divorce
Many people are of the view that the legal system is “behind the times” when it comes to all things digital. Digitalisation is no longer having an influence purely on how lawyers work but is fast becoming a key challenge in their cases.
The usual first step when considering division of assets within the divorce process is the exchange of full and frank disclosure between the parties. Each party is required to produce documentary evidence such as bank statements to provide a full picture of their financial circumstances. Advances in software mean that those documents (if in digital form) can now be altered from their original state with relative ease.
Similarly, in both financial and children proceedings, audio or video recordings may be used in evidence. Software is now sophisticated enough to alter those recordings and the court could be presented with evidence that cannot be trusted.
The general public is becoming more familiar with the notion of deepfakes. However, the real life application of them often goes far beyond amusing content of politicians passing comments they never made or Miles Fisher’s viral impersonation of Tom Cruise using deepfake technology.
In February 2020, a heavily manipulated audio recording was used to discredit a father in court proceedings. In that instance, a mother had doctored the contents of telephone calls and audio recordings of her former partner. The result of the edits was a telephone call, which the mother had claimed she had recorded, that included direct threats of violence from the father to the mother.
The mother had used software and online tutorials to edit the audio file. Fortunately, in this case, the father’s solicitor was able to obtain the original audio file and study it to the extent that they identified it had been edited.
Doctored videos and audio files are sometimes referred to as “deepfakes”.
Parties in family proceedings will more often than not correspond and exchange documents and disclosure by way of email. In addition, court bundles prepared for hearings are now mostly electronic.
A number of different documents can form part of an individual’s disclosure and chances are that these documents could be alterable in some way or another. This can range from “high-level” manipulation such as downloading a bank statement and re-opening it in a program in which edits can be made, to more simple manipulation for example, using a mobile phone to edit a photograph. Our family team have the relevant expertise to properly consider and scrutinise an individual’s disclosure and can confidently identify issues including potentially manipulated documents.
In the recent case of X -v- Y  EWFC 95 the parties lived in the Husband’s home country, but the Husband wished to move to London. To convince the Wife to do so the Husband said that the move to London would benefit them financially and presented her with bank statements showing he had received a down payment of £8,000,000 in respect of his business. The Court found that on the balance of probabilities the Husband had dishonestly and falsely manufactured bank statements during the marriage
Further, when presented with evidence obtained by the Wife of him enjoying an expensive lifestyle, the Husband admitted that he had deliberately photo-shopped images on Instagram and Facebook and that they were fake. The Husband asserted that this was a common practice.
In his concluding statement the Judge in this case said, “I wish to draw wider attention to the ability of dishonest parties to manufacture bank statements (and other documents) which, for all practical purposes, look genuine, but which in reality are not in that category…….it is important for litigants, practitioners, and judges to be aware of the issue”.
Not only are we seeing people using document manipulation to potentially conceal their assets but dishonest parties are also using the prevalence of manufactured images and constructed reality as a way to explain their apparent wealth. Our lawyers are skilled in dealing with individuals who make attempts to conceal their assets and are no strangers to looking beyond the disclosure to get a true picture of an individual’s financial circumstances.
How to identify
It is crucial that solicitors have an understanding of how to identify potentially doctored evidence and have at the forefront of their minds the importance of challenging evidence that does not stack up or may have been forged.
Traditionally, upon disclosure of evidence, the role of the solicitor was to review the documents, identifying any key themes and issues arising out of the same. Solicitors should now be routinely scrutinising the form and properties of any documents so they can satisfy themselves as to the authenticity of a document. The JMW family team can work closely with forensic experts to investigate and interrogate the veracity of documents produced during court proceedings.
One way to do this is to look at the metadata of a document. Metadata is defined as “data that provides information about other data”. The Metadata for a document such as a bank statement will show who created the document and should provide details of if and how the document has been altered.
In terms of video and audio evidence whilst technology is advanced it is not always perfect. Warping and other side effects of digital translation can expose a deep fake.
If you suspect that an electronic document has been altered or manufactured then there are ways to overcome this including verification from a third party source or in more straightforward cases, simply asking for a copy of the original document.
The rise of digital disclosure has presented a real risk to practitioners and clients alike in terms of the rise of deepfakes and document manipulation. This is a real problem that practitioners should be alive to particularly in circumstances where the consequence of evidence being accepted on face value could be as far-reaching as an individual reaching a financial settlement that is detrimental to them. It is essential that family lawyers are able to identify and manage these issues.
Dodgy Digital Documents: Where are we Now? Where Are we Going? – Financial Remedies Journal – Summer 2022.
X-v-Y  EWFC 95