AI: some legal and ethical issues
Under the Fraud Act 2006, 12 fraud is defined into three classes: ‘ Fraud by false representation ’ , ‘ Fraud by failing to disclose information ’ and ‘ Fraud by abuse of position ’ . In the context of the issue, ‘ Fraud by false representation ’ appears most relevant. It is defined as when a person ‘ dishonestly ’ makes an ‘ untrue or misleading ’ statement and when the person knows it is as such; a representation ‘ may be express or implied ’ . Furthermore, there must be an intention ‘ to make a gain . . . or to cause loss to another ’ , and a gain or loss only extends to ‘ money or other property ’ . The act of submitting an AI-written essay certainly satisfies the notion of an ‘ implied false representation ’ , since P would be implying that the AI-written essay is his own work, despite knowing that this is untrue. In order to then establish P’s intention to make a gain or loss, it would be necess ary to draw one interpretation from the overarching question, whereby P’s intention would be to obtain a favourable result in the essay competition. If such intention is true, it can be implied further that P intends to gain a prize from this favourable result. Thus, in this interpretation, there would clearly be an intention to make a gain in money. As such, submitting an AI-written essay is fraud, provided that P’s intention would be to gain a favourable result in the competition. It then becomes necessary, once again, to scrutinize whether the contemplation of submission is an attempted crime – in this case, ‘ attempted fraud ’ , which is a crime in the UK. The Criminal Attempts Act 1981 stipulates that a person is guilty of attempting to commit an offence ‘ if, with intent to commit an offence ’ , they perform an act that is ‘ more than merely preparatory (MTMP) to the commission of the offence ’ . The mens rea is the intent, and the actus reus is the act that is MTMP. It has already been established that P has an intent to commit fraud; the question, therefore, is whether the contemplation of submitting an AI-written essay is sufficiently ‘ more than merely preparatory ’ . It is important to address the relevant ambiguities of the overarching question with regards to the degree of proximity to the actual act of submission. One interpretation is that P had not even generated the essay; if that is the case, then P cannot be charged for attempted fraud, simply because the mere contemplation of submission, or any illegal action for that matter, cannot be lawfully criminalized. The second interpretation is that P had already generated the essay, but had not carried out any action towards uploading or submitting it. In this case, P is arguably still in the preparation stage and is therefore not committing an act that is MTMP. This may be better illustrated through the case of R v Campbell. 13 The defendant had successfully appealed his charge of attempted theft because, although he had the intention to rob a post office, his action of loitering outside had not strayed beyond the realm of preparation; he made no attempt to enter the post office.
The third and final interpretation is that P had not only already written the essay using AI and uploaded it for submission, but was also only one click away from submission. Here, P would arguably be committing an act that is MTMP or, in other words, attempted fraud.
Of course, one may counter this with the fact that P had not reached a point of no return – since there remains the option to remove the essay from submission – and has therefore not gone beyond the
12 Fraud Act 2006 (c.35). 13 R v Campbell [1991] 93 Cr App R 350.
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