Manipulated digital content could distort justice if not properly verified, the High Court has ruled.
Artificial intelligence and deepfake technology pose a threat in criminal proceedings, as manipulated digital content could distort justice if not properly verified, the High Court has said.
In a ruling dismissing the prosecution’s bid to limit access to evidence by the defence in a child exploitation case, the court cautioned that in the age of AI-generated videos, the authenticity of online material must be rigorously tested before it can be relied upon.
The prosecution went to the High Court seeking review of a Shanzu Magistrate’s Court order that the defence be supplied with physical copies of material evidence it intended to rely on during the trial. The materials include indecent and obscene digital images and videos of a minor victim, according to the prosecution.
Court says that the peculiarity of offences within the digital space carries an array of nuances that cannot be ignored.
The suspect, Ms Noel Naliaka, has since denied charges of online child exploitation and child pornography. She was accused that, on diverse dates between February 20 and 23, being a user of a Snapchat account and using a verified email, she knowingly and intentionally published child pornography through a computer system, uploading and sharing a video depicting the sexual abuse of a minor, an act constituting online child exploitation.
In its ruling dated October 24, the High Court held that there were glaring gaps that the prosecution and the investigative agencies were yet to fill. It noted that the prosecution admitted that the alleged minor victim was yet to be traced or their identity ascertained and verified.
“Which criteria did the prosecution and the investigative agencies utilise to ascertain that the victim is a minor while they are yet to trace and identify the said victim?” asked the High Court.
The Court added that it was not privy to the obscene and indecent images and that this does not downplay the seriousness of the charges and offences. However, it said that the peculiarity of offences within the digital space carries an array of nuances that cannot be ignored.
“This court is alive and takes judicial notice as a matter of public notoriety that we are in the era of artificial intelligence and deep fakes where digital images and videos are manipulated to replicate real life scenarios and people,” it ruled.
Manipulated digital content could distort justice if not properly verified, the High Court has ruled.
The court also noted that the established position is that the burden of proof remains with the prosecution, while the presumption of innocence of the accused person is upheld until they are convicted beyond reasonable doubt.
Given that the alleged victim has not been traced, identified or had their age ascertained, the Court ruled that the provisions under Clause 5.4.2 of the Standard Operating Procedures (SOP) on Online Child Sexual Exploitation and Abuse in Kenya concerning limited disclosure of evidence cannot be applied.
“It will be a travesty of justice to curtail the accused person’s fundamental right to fair trial on the pretext of unverified and unascertained information,” ruled the court.
Through her lawyer, Ms Naliaka had argued that no evidence had been adduced by the prosecution to ascertain that the case is a children’s matter.
She said that from the date of her detention for investigation into allegations that she uploaded a video depicting the sexual assault of a minor, the investigating officer had informed her that they were in the process of tracing and rescuing the victim and apprehending the perpetrator. However, this has not yet happened, and the allegation that the victim is a minor remains.
The court released Ms Naliaka on a Sh500,000 bond backed by a fixed asset and two sureties of a similar amount. The court directed the accused to provide two contact persons who are adult blood relatives.
Upon her release, the investigating officer shall visit her residence in Kimilili, Bungoma County.
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