The Skills and Post-16 Education Act 2022 came into force last month on 28th April and includes provisions that purport to stamp out so-called ‘essay mills’. The Act follows similar provisions that have been introduced in Ireland (2019) and Australia (2020). New Zealand and 17 US states that also prohibit such services.
Contract cheating – where students pay someone else to write an essay for them – is big business in the UK, but historically for various reasons, the government has resisted banning the practice. Will the legislation put an end to this age-old practice?
The relevant section amounts to just shy of 1,500 words under ‘Part 4 – Miscellaneous and general’, which below Chapter 1 is described as ‘Cheating services provided for post-16 students at English institutions’.
The offences are contained at Sections 27 and 28.
The first offence at Section 27 is providing or arranging a ‘relevant service’.
“It is an offence for a person to provide, or arrange for another person to provide, in commercial circumstances, a relevant service for a student in relation to a relevant assignment.”
The second offence at Section 28 is advertising a ‘relevant service’.
“A person who advertises a relevant service to students commits an offence.”
The first part of section 28 makes it clear that it does not matter who the adverts are made to. You could not for example advertise an essay writing service on a non-student site and argue that this wasn’t advertising to students – this is covered by Section 28(2).
The Act covers the provision of a ‘relevant service’.
This is described at Section 26(2) as
“a service of completing all or part of an assignment on behalf of a student where the assignment completed in that way could not reasonably be considered to have been completed personally by the student.”
The section further clarifies that this includes:
providing material to the student in connection with the assignment where
(a) the student could use the material in completing the assignment or part, and
(b) the material—
(i) is prepared in connection with the assignment, or
(ii) has not been published generally.
This definition would therefore include both writing a ‘custom essay’ for a student which they hand in as their own, and also writing a ‘model answer’ for the student (in response to their specific assignment), even if the student goes on to write their own piece of original work.
Some custom essay companies market their services as model answers, similar to those found in example Q & A books that you can purchase widely from bookshops. Indeed, model answers can be a helpful way of learning how to structure an essay (particularly in law). Lecturers frequently hand these out to their students, but naturally they won’t give the exact answer to whatever essay question has been set. Historically some essay companies say that the model answers they produce should be used as an example and should not be handed in (naturally this is somewhat difficult to police). However, despite this, the legislation will no longer permit this as a service.
The definitions do not affect Q & A books which are of course not specific to the assignment, containing ‘other educational or training material’ and being ‘available generally’. Nor does the section impact open-access sites that contain a vast bank of sample essays. Again these have not been prepared in relation to the specific assignment and they are also ‘published generally’, ‘without payment’. However, it would affect a service (for example) that provided sample/model essays to a student that were closely related to their assignment, in exchange for payment (for example, a rewrite of a legal problem question where the names and practical facts are different but the structure and relevant law is the same; or even sending the student a bundle of example answers in relation to their specific question – see Section 26(4)).
I believe the definition will also cover research and data analysis, since this is part of the assignment that would reasonably be expected to be completed by the student, even if it does not directly end up in the final submission.
Who is affected?
Which persons within the essay writing company might be considered to have ‘provided’ or ‘arranged the provision’ of such services?
Section 26(5) will cover individuals offering essay writing services for money (e.g. on campus), business owners and their staff (the person’s ’employer’) although see my view below on junior employees in companies.
Will it cover those writing the essays (typically known as ‘writers’ or ‘researchers’?) I would argue yes – they are self-employed rather than employed, so effectively writing essays for an essay mill is ‘the person’s own business’.
In terms of those receiving the services, the Act defines students as
“a person who is undertaking a relevant course at a post-16 institution or sixth form in England, or any other person over compulsory school age who has been entered to take an examination relating to a regulated qualification at a place in England.”
So again this is limited to students studying at institutions in England only. Essay mills will need to take care that they are not providing such services to students who are studying in England. Exactly what steps should be taken is not clear but
Would any services be permitted?
Essay writing companies typically offer quite a wide range of services besides simply writing a custom assignment. For example:
- Exam revision notes
It is my own view that the Act does not cover proofreading. The work still is the student’s own and no material is provided.
However, it may cover a paid marking service and it almost certainly would cover editing, since both would provide the student with material in the form of feedback and additional words respectively.
Exam revision would fall under the additional definitions in Section 30 and would therefore be covered.
Those found guilty under the Act will be liable on summary conviction to a fine. In other words, it is a criminal offence and the case would be heard in a criminal court (i.e. the magistrate’s court).
The defence under Section 27 is that the “defendant did not know, and could not with reasonable diligence have known, the matter.”
Section 27(4)(a) goes on to list the matters that might be a defence, including:
“if material is provided to the student as a result of the relevant service, that the student would or might use the material in completing all or part of the assignment.”
So, if the defendant DID provide a relevant service (e.g. custom essay writing) but DIDN’T know the student would or might use the essay, this is a defence. It might cover, for example, someone offering a writing service that was not marketed as an essay writing service – for example, website content writing. If I approached a website content writer for a model ‘SWOT analysis for my website’ and I then handed in that SWOT analysis as part of my course, the writer would have no idea what I intended to do with their work.
It might also cover a person contracted to write the work (researchers, writers), if they were genuinely led to believe that their efforts would be used for some other purpose (e.g. they thought they were writing website content).
Of note, there is a specific provision at 27(5) that a written disclaimer from the student is NOT sufficient evidence in itself that the provider didn’t know how the work would be used. So a checkbox on an order form, or even simply a signed contract, would not be enough for essay mills to say that they simply didn’t know what the student intended to do.
This begs the question, what WOULD be enough? There is no definite answer to this. For a start I would suggest that if you are presented with an order for an essay, you would need some credible explanation of what it would be used for (other than an assignment) – or some proof that the student was studying somewhere other than an English institution.
Filtering out students from English institutions
The Act applies to England only. Education is a devolved area, so other UK countries will need to adopt their own provisions. Essay mills can therefore still serve students in England who are studying at universities located elsewhere.
There are two aspects to this.
- The essay mill needs to ensure they are not selling to students studying at an English university.
- The essay mill needs to ensure they are not advertising to students studying at an English university.
What is advertising exactly?
Although not a statutory definition, advertising is defined by the ASA as ‘material which is directly connected with the supply of goods, services, opportunities or gifts, or which consists of a direct solicitation of donations.’ Content on a website can be advertising (alternatively, it can be ‘editorial content’).
The offence is discussed above but the point here is, essay mills need to ensure they are not ‘advertising’ to students through their websites who are studying in an English institution.
An essay mill could block visitors by IP although they might not want to because the student could be living in England, studying abroad. Further, it’s easy to get around an IP block. Possibly all visitors could be presented with a interstitial that greys out the screen, explaining that students studying at English universities (and other relevant countries/states where essay mills are banned) cannot be assisted, and asking them to confirm they were studying abroad (or not). But in my opinion I do not think that this is enough in itself.
A student clicking a button to confirm that they are studying abroad is no different to a minor clicking a button to confirm they are over 18 (which then allows them to access restricted goods or adult services). I also considered that the Act specifically notes at Section 27(5) that a written term is not sufficient evidence that the student will not hand the work in. Even though this section is about use of the work not where they are based, it stands to reason that a statement from the student alone (perhaps next to a button or checkbox) confirming that they are not studying at an English university would also be insufficient evidence.
Then when it comes to ordering (assuming the student has got past any other measures), again, would a button or check box alone be enough, to confirm they are enrolled on a course in England? If you look at parallels with other services (e.g. alcohol and knives to over 18s) it is not – and again, Section 27(5) suggests to me that the student’s word alone is not going to be enough.
Really the only way for the essay mill to be certain of where the student is taking their course, is to ask the student for evidence of which uni they are studying at – and even this could be faked or borrowed.
Where companies – whether incorporated or not – have committed the offence, Section 29 applies.
It holds that where offences under Sections 27 or 28 have been committed either with the “consent” or “connivance of”, or due to the “neglect of” certain persons within the company, it is THOSE persons that will be guilty of the offence, in addition to the company itself.
The list includes “a director, manager, secretary or other similar officer of the body corporate” OR “a person who was purporting to act in any such capacity.”
It is my view that junior, non-managerial staff are therefore not the target here. The mention of ’employer’ above, was to catch those employed in management type roles (whatever their job title). Generally in criminal law the job title or description someone is given is irrelevant. What will be relevant is whether the person concerned is ‘in control of the company’s affairs to a sufficient degree that the company can fairly be said to think and act through them’. This is tested by reference to the detailed work patterns of the person.
Those acting in a managerial capacity that either consented to the provision of the service, willingly allowed the service to be provided or were negligent (i.e. failed to take proper care to ensure the service was neither advertised or provided within the company) are therefore be potentially liable.
Will it be enforced?
Whilst contract cheating has certainly become pervasive, many academic integrity experts have been sceptical about the introduction of these laws, partly because there have been very few prosecutions. A lot of essay mills are based abroad (for example Pakistan, India) which will make prosecuting companies or the individuals behind them much more difficult.
As noted earlier, essay writing services are already banned in New Zealand, Australia, Ireland and 17 US states. To date, there have been no successful prosecutions reported in Ireland; and although New Zealand authorities launched proceedings against a company thought to have earned NZ$1.1 million (£558,000) from cheating, this claim was settled out of court.
Australia took a different approach last year when an Australian court obtained a five year injunction against service providers, requiring the website “assignmenthelp4you.com” and its sister site, “assignmenthelp2u.com” to be blocked. The injunction, which applied to a number of service providers operating in Australia, required them to block access to the domain names, internet protocol (IP) addresses or uniform resource locators (URLs) of the two websites and redirect visitors to a Teqsa web page explaining why the service has been taken offline. This would certainly seem like a more straightforward and effective way of enforcing the legislation than going after individuals.
Australia’s legislation contains specific provisions that allow TEQSA to block academic cheating websites using court orders (along with penalties of up to two years in jail and fines of up to $110,000 for providing or advertising the services). There is no parallel provision in the English legislation. Would an ISP on notice fall under Section 29(1) (‘neglect’)?
This article is my own personal view of the legislation and is NOT intended as legal or professional advice. Updated: 12th May 2022