Deepfakes as Criminal Evidence: Detection and Challenge
Criminal defense through expert challenge of deepfakes submitted as evidence and representation of victims of AI visual manipulation.
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A deepfake is audiovisual content generated or modified by generative artificial intelligence (GAN, diffusion models) that replaces a person's face, voice or body with increasing verisimilitude. In criminal process it appears in two opposite positions: (1) as prosecution evidence, when an apparently incriminating video or audio is submitted that may have been manipulated; and (2) as instrument of the offense, when used for sexual extortion, slander, identity impersonation or fraud. Each position demands a different strategy: in the first we defend the accused by challenging the authenticity of the material; in the second we represent the victim by exercising the private prosecution.
Technical Anatomy of a Deepfake
Understanding how a deepfake is built is the first step to challenging it. The most widespread techniques are face-swap (replacing one face with another frame by frame), lip-sync or facial reenactment (the lip movement is altered to make someone appear to say something they did not) and voice synthesis from short samples. Behind all of them lie two families of models: generative adversarial networks (GAN), in which a generator and a discriminator compete until they produce a plausible result, and diffusion models, which reconstruct the image from noise. Both, however, leave statistical traces in the image and the sound that are imperceptible to the naked eye but detectable through expert analysis. Knowing the technique used guides the detection method and helps anticipate the weak points of the material submitted by the opposing party.
Forensic Detection Methods
Forensic detection of deepfakes combines several methods: frequency analysis (generative models leave signatures in the frequency domain), GAN artifact search (ocular asymmetries, anomalies in hair and edges), biometric inconsistencies (blinking patterns, microexpressions, heart rate visible in skin), metadata analysis (EXIF, encoding, traces of editing software) and regulatory watermarks imposed by EU Regulation 2024/1689 (the Artificial Intelligence Act) on providers to mark synthetic content. No method is infallible in isolation, but their combination markedly reduces the false-negative rate. Evidence with procedural value requires an expert report with documented and reproducible methodology; public automatic detectors, with high error rates, do not suffice on their own to found a judicial conviction.
Criminal Qualification of the Deepfake
The deepfake is not an autonomous criminal offense, but the means of committing offenses already set out in the Criminal Code. When it distributes or threatens to distribute content of a sexual nature —even if false but plausible— it may constitute the offense of non-consensual distribution of intimate images (Art. 197.7 CP), in concurrence with the offense against moral integrity of Art. 173 CP depending on the severity of the harm. If it attributes a criminal act to a person or damages their reputation, slander or libel (Arts. 205 and 208 CP) comes into play. The use of another's identity to defraud may fall under fraud (Arts. 248 and 250 CP) and, where applicable, identity impersonation (Art. 401 CP). The specific qualification depends on the content, the means of distribution and the harmful result, and frequently requires resolving a concurrence of offenses.
Defense Against Suspicious Evidence
When a video or audio that may have been manipulated is submitted against the client, we structure the defense on two planes. On the technical plane, we request a challenge expert report with combined methodology (frequency, biometric and metadata) and reconstruct the chain of custody of the material from its origin to its incorporation into the case file, to locate the opportunities for alteration. On the procedural plane, we seek early evidence exclusion during the instruction phase, before the material contaminates the judicial conviction, and we work a dual defense line: challenging authenticity (arguing it is a deepfake) and, subsidiarily, disputing the context (that, even if authentic, it does not establish the elements of the offense). The burden of proving the authenticity and integrity of the digital evidence lies with the party that submits it.
Victim's Criminal Action
A person who is the subject of a deepfake has several avenues, frequently cumulative. In the criminal order, we file a complaint for the corresponding offense (sextortion, slander, impersonation or fraud) and seek urgent precautionary measures for the removal of the material on platforms, social networks and servers. In the civil order, there is protection of honor, privacy and one's own image under LO 1/1982. In the administrative order, a complaint before the Spanish Data Protection Agency (AEPD) for unlawful processing of biometric data. The Digital Services Act (DSA) reinforces the platforms' duty to remove the content following a substantiated notification. Early action is decisive to halt the viral spread and preserve evidence of the distribution.
Penalty Chart
| Type / Scenario | Criminal Penalty |
|---|---|
| Sextortion with deepfake (Art. 197.7 CP) | Imprisonment 3 months to 1 year or fine 6-12 months for non-consensual distribution of sexual images. Applicable even if images are false but plausible. |
| Slander or libel (Arts. 205, 208 CP) | Imprisonment 6 months to 2 years or fine, according to criminal attribution and public distribution. |
| Fraud (Art. 248 CP) | Imprisonment 6 months to 6 years when patrimonial transfer is obtained through deepfake deception. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Our Defense Strategy
Early Evidence Exclusion
Request expert evidence during instruction to disqualify the deepfake before it contaminates judicial conviction.
Dual Defense Line
Challenge authenticity (it is deepfake) and, subsidiarily, context (even if real, does not establish the type).
Precautionary Content Removal
For the victim: urgent precautionary measure for elimination of material on platforms, social networks and servers.
Cybercrime in Spain: Hacking, Phishing & Digital Fraud — Defence Guide
Cybercrime encompasses illegal access to computer systems (Art. 197 bis CP), computer damage and ransomware (Art. 264 CP), phishing and digital fraud (Art. 249.1.a CP), and the production or distribution of hacking tools (Art. 197 ter). Spain's prosecution of cybercrime has intensified dramatically, with specialised units in the National Police (BIT) and Guardia Civil (GDT) leading investigations. Defence requires a unique combination of criminal law expertise and advanced technical knowledge.
Penalty Table: Cybercrime
| Offence | Article | Description | Penalty |
|---|---|---|---|
| Illegal access to systems | Art. 197 bis | Unauthorised access breaching security measures | 6 months – 2 years |
| Interception of data | Art. 197 bis.2 | Intercepting non-public data transmissions | 3 months – 2 years |
| Production/supply of hacking tools | Art. 197 ter | Creating or distributing tools designed for cybercrime | 6 months – 2 years |
| Computer damage (basic) | Art. 264.1 | Deleting, damaging or making data inaccessible | 6 months – 3 years |
| Aggravated damage (critical infrastructure) | Art. 264.2 | Affecting essential services or critical infrastructure | 2 – 5 years prison |
| Cyber fraud (phishing) | Art. 249.1.a | IT manipulation to obtain unlawful transfer of assets | 6 months – 3 years |
Key Defence Strategies
IP Attribution Challenge
An IP address does not identify a person. Shared Wi-Fi networks, VPNs, Tor exit nodes and NAT configurations mean multiple users may share one IP. The prosecution must prove the accused was the actual user at the relevant time.
Chain of Digital Custody
Digital evidence is extremely fragile. If the police failed to image the hard drive with a write-blocker, if hash values don't match, or if evidence was handled improperly, the defence can seek exclusion of the entire digital evidence chain.
Authorised Security Testing
Ethical hacking and penetration testing carried out with the system owner's authorisation is legal. If the defendant had a written engagement contract, bug bounty agreement or responsible disclosure policy, there is no criminal offence.
Lack of 'Breaching Security Measures'
Art. 197 bis requires that security measures were breached. If the system had no password, no firewall, or the access point was public, the element of 'breaching security' may be absent, negating the offence.
Key Case Law
The Supreme Court confirmed that 'access' requires effectively entering the system, not merely attempting it. The prosecution must prove: (1) access occurred, (2) it was unauthorised, and (3) security measures were breached. Port scanning alone does not constitute the offence.
The Court ruled that ransomware attacks may constitute a concurrent offence of computer damage (Art. 264) and extortion (Art. 243 CP). The encryption of data satisfies the 'damage' element even if data is technically recoverable upon payment.
In phishing operations, the Court distinguished between the organiser and the 'money mule' (account holder). The mule's liability depends on proof of knowledge that the funds were illicit. Wilful blindness may suffice, but mere negligence does not.
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