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Do I have to ask a customer's permission to mention I have worked for him?
Thread poster: Greg Twiss

Greg Twiss  Identity Verified
Germany
Local time: 09:42
German to English
+ ...
Jul 10, 2004

If I am creating a new web site or doing some promotional work, do I have to ask a customer for his/her permission before mentioning that I have worked for him/her? Of course I would be interested in answers relating to ethical questions, but I am also asking this question in a strict legal sense: do I have to inform him and do I have to remove his name if he asks me to?
Thanks!

P.S. I should mention that I am living in Germany, so German / EU Law applies!

[Edited at 2004-07-11 02:45]


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Narasimhan Raghavan  Identity Verified
Local time: 14:12
English to Tamil
+ ...
It depends on the agreement you have entered into with the client Jul 11, 2004

Way back in 1995 I was discussing my working arrangement with a client, who was the Head of Department in a big organization. He told me among other things that his work was very sensitive and the confidentiality had to be maintained at all costs. Hence he told me that I am not to disclose the fact of my working for him to anyone else. He included in this category even the other departments in his own company. I humored him but later when he asked me for a list of my other clients, I refused to disclose the same to him citing the confidentiality of that information as well. He didn't like my reply but he had to just grin and bear it. Of course I continued doing his work.

Barring the above such explicit agreements, I don't think there is any ban in mentioning the fact of working for a client, this especially while talking to clients in the same line of work as the client in question. For example if I work for an automobile concern and if I am discussing possible collaboration with another automobile company, it will make sense to cite my earlier client, as in that case I can show the new client that I have experience in translatiing his kind of literatures.

One more point. If you have got a client list, just use it. In the absence of non-disclosure agreements, you are on safe ground. If on the other hand, you ask for permission, there is a risk of getting a refusal. Don't risk it. Life is complicated as it is. So the answer to your query is: There is nothing illegal about telling the truth.

Regards,
N.Raghavan


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Trudy Peters  Identity Verified
United States
Local time: 03:42
German to English
+ ...
Yes Jul 11, 2004

is the short answer.

There was a thread on this subject recently. You may want to do a search.


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Rahi Moosavi  Identity Verified
Canada
Local time: 03:42
Member (2004)
Farsi (Persian) to English
+ ...
Yes Jul 11, 2004

I always do this, on small jobs I only get the permission by email but on some more serious jobs, I always have this issue included in my contract. Nobody has objected so far.

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Greg Twiss  Identity Verified
Germany
Local time: 09:42
German to English
+ ...
TOPIC STARTER
Very interesting responses...thank you Jul 11, 2004

Thank you for some very interesting responses.

I tend to agree just purely instinctively, as I understand the law, that I am free at any time to mention that I work for parituclar clients. This is clearly different from mentioning them as references. My question was aimed exactly at this - not at mentioning clients as references but purely at having the right to say who I have worked for and when.

And you are right, there are certain agencies who I won't mention here who even forbid you from mentioning you work for them. I find this practice extremely dubious and will check whether it is actually legal in Germany.

Thanks again to one and all.

[Edited at 2004-07-11 09:01]


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Uldis Liepkalns  Identity Verified
Latvia
Local time: 10:42
Member (2003)
English to Latvian
+ ...
In short I would would say YES. Jul 11, 2004

please see the discussion http://www.proz.com/topic/20592
BTW, I do not get why Tayfun insists so much on Law, in my opinion it's more an ethical question.
I guess you're not seeking pretexts to start law suits with your clients


Uldis

Greg Twiss wrote:

If I am creating a new web site or doing some promotional work, do I have to ask a customer for his/her permission before mentioning that I have worked for him/her?


[Edited at 2004-07-11 21:47]


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Narasimhan Raghavan  Identity Verified
Local time: 14:12
English to Tamil
+ ...
Let us look at things calmly Jul 11, 2004

I will definitely include only satisfied clients in my list. If a dissatisfied client is included, only I will have problem as he is sure to rubbish me with people enquiring him about my services.

My recommendation for not asking the client beforehand is also based on practical considerations. If you ask for permission, he may be cussed enough not to agree. Once his disagreement is expressed, your position becomes untenable. Hence I would say: Just include the client's name in the list and sit tight. More often than not there will be no reaction. And your purpose is served.

No legal bar nor do I agree about ethical bar in the absence of prior expression of the client's wish not to be included in the list. If any legal action comes-extremely unlikely- you have the defence of truth.

Regards,
N.Raghavan


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nordiste  Identity Verified
France
Local time: 09:42
Member (2005)
English to French
+ ...
experience or reference Jul 11, 2004

I think I would make a difference here between "experience" and "reference" .
Experience is entirely yours. So you can mention any field of experience you worked in, and IMO this includes mentionning companies' names. I cannot see anything preventing you to mention them on your Cv or even Website as far as you don't give any confidential information like project title or content.
I would just be careful and not mention any current project or client - that is when you are still working on it - it might be too confidential. For instance you are tranlasting (or you just finished to translate)) marketing material into German for a French company which is unknown in Germany, this could give an indication that they are preparing for the German market... something I am sure they would prefer to keep for themselves until the launching campagn.

References are something different, especially here in France. If you mention reference, this implies that you give clues to verify them (like name of the project manager / or of any other person ). Of course it would be unethical to mention somebody without his permission.

In my own experience banks and credit companies are very very sensitive about this. I worked for a credit company which had put in the contract an article like "you must get permission to quote us as your client" . In fact they usually grant permission unless you did a very bad job, or they are in dispute with you regarding paiement !

Hope you'll find your own course of action !


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Anne Gillard-Groddeck  Identity Verified
Local time: 09:42
German to English
Invalid contracts Jul 11, 2004

[quote]Tayfun Torunoglu wrote:

Under Labor law, most of agreement articles agreed under pressure are invalid, however invalidity is not an agreement article just immediatly follows and you may face with suits to get this result, I belive courts will decree them as invalid. In any case you had better not accept any agreement which you can not keep your promise and behave in upmost care. That rule protecting employees from "powerful employers" should not be abusedand my have different interpretations in several jurisdictions.


I am not a contracts expert, but just a few comments here on English law:

1) Freelancers contract with agencies as independent contractors and not as employees so I doubt whether labour law would be applicable unless it were proved that the independent contractor did not really have this status.

2) Otherwise there are doctrines of duress and undue influence which are very interesting and can be used to set aside contracts, but just a few notes here:

Duress (which is difficult enough in itself to define) does not make a contract void, but merely voidable. What this means is that the contract continues as a valid contract. Thus the person who has been put under duress has to invalidate the contract by rescinding it, so that neither side is under any obligation to perform in the future.

There are however bars to rescission, including affirmation and delay. So if you go about performing a contract which you consider to be unfair you are affirming it and you should not delay in getting out of the contract.

The judicial guidelines for determining whether a party has acted under duress are:
- did the party alleging duress protest at the time (just thinking I don't like this is not enough)
- did the party have an alternative course of action or a legal remedy available
- did the party take independent advice
- how quickly did the party rescind


The way that courts take decisions very much depends on how society develops and the role played by public policy. Traditionally courts have been reluctant to intervene in commercial contracts (the freedom of contract principle), but on the other hand societal pressures are demanding the development of a doctrine of fairness (which courts call (or have called) conscionability).

An example of the doctrine of fairness interfering with freedom of contract can be seen in the development of consumer protection law throughout the EU.

It must also be said here that some ("English") judges have proved to be extremely creative in this respect (e.g. in the field of undue influence which is a different matter and which I won't bore you with here), with the result that the outcome of some cases may be extremely difficult to predict.

These are just some thoughts intended to show that the matter is not easy and by no means cut and dried, not to mention the problem of the different jurisdictions.


This is not giving advice, but maybe you can draw your own concusions from this.


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xxxBrandis
Local time: 09:42
English to German
+ ...
ît is always to get hold of permissions of all kinds Jul 11, 2004

Greg Twiss wrote:

If I am creating a new web site or doing some promotional work, do I have to ask a customer for his/her permission before mentioning that I have worked for him/her? Of course I would be interested in answers relating to ethical questions, but I am also asking this question in a strict legal sense: do I have to inform him and do I have to remove his name if he asks me to?
Thanks!

P.S. I should mention that I am living in Germany, so German / EU Law applies!

[Edited at 2004-07-11 02:45]
Hi!ît is always good to get hold of permissions of all kinds, that reflect your present and future intentions. The situation is a lot comfortable, if you get them, as most of the clients visiting this site are seeking services without backdrop or responsibility.
Greets
Brandis

[Edited at 2004-07-11 22:32]


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Luis Arri Cibils  Identity Verified
Local time: 02:42
Member (2003)
English to Spanish
+ ...
There are very few, if any, short answers in law Jul 11, 2004

As a general rule, in heavily regulated professions such as law and medicine, the client's name is confidential information. See, e.g., the following references:

---------------------------------------------
The client's name, address and fee amount owed, are related to the representation and is confidential information. RI Eth. Op. 94-42 (1994). (Rhode Island State Bar Opinion)
http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/ri-narr/query=[jump!3A!271!2E6!3A100!27]/doc/{@413}?

Confidential information relating to a client or case, including a client's name, should therefore never be posted on this site. http://old.probono.net/terms.cfm

Confidential information that cannot be released without consent includes the client's name, address, diagnosis, medical condition, the results of any evaluation, and any other information that the client has provided to the Texas Department of Mental Health and Mental Retardation (TDMHMR) or that is contained in his records.
http://www.advocacyinc.org/CS8_print.htm

-------------------------------------------
But translation is, essentially, an unregulated profession. Is the name of a translator’s client still confidential information in this unregulated industry? Let me first assert something that I am sure will surprise all of you: No member of ProZ ACTUALLY believes that disclosure of a client’s name is a confidentiality breach. Of course we don’t!: We all disclose our clients’ names (and encourage others to do the same) on the Blue Board. True, there is nothing really secret being disclosed there. But saying that is the same as saying that a client’s name is not in itself confidential information in our industry.

Then, what is confidential information in the context of translation? Does it cover the client's name? We at least know what ATA appears to think confidential information is (and ATA takes a very narrow definition!). In ATA’s model contract, the confidentiality clause reads:

--------------------------------------------
7. Confidentiality. All knowledge and information expressly identified by Client in writing as confidential which Translator acquires during the term of this Agreement regarding the business and products of Client shall be maintained in confidentiality by Translator and, except as expressly authorized by Client in writing, shall not be divulged or published by Translator and shall not be authorized by Translator to be divulged or published by others.
http://www.atanet.org/model_contract.htm
--------------------------------------------
Thus, for ATA, confidential information is all knowledge and information EXPRESSLY IDENTIFIED BY CLIENT IN WRITING AS CONFIDENTIAL.

Of course, ATA may be wrong, and a court may disagree with ATA and construe the ATA Code of Ethics as imposing broader obligations when it reads:

--------------------------------------
C. I will safeguard the interests of my clients as my own and divulge no confidential information. http://www.atanet.org/bin/view.fpl/13653.html
--------------------------------------
The court may ask whether a translator's duty to safeguard the interest of a client would not at least require talking to the client first before publishing the client’s name.

To conclude, I would be careful and consult a local attorney expert in the area before publishing my clients’ list. Furthermore, I would evaluate whether it is worthwhile to publish it. Old clients may resent being named without their consent; they will unlikely stay as clients for long. Potential new clients may consider the translator untrustworthy and lacking any regard for the client’s well being; these prospective clients may never become actual ones. Finally, you can always describe your work saying something like: Translated from English to Swahili all the documentation (100+K words)pertaining to an offshore oil lease agreement for one of the 10 world's largest oil companies. Does it add much identifying that the client was Exxon, Shell or BP? (Incidentally, that is how I describe on my resume my past legal experience, being the legal area one where I know that I cannot disclose my clients’ names.)

On the other hand, if I have already published the list and now a client (likely now, a former client) is challenging that publication, I would not give up. It is highly likely that, in the absence of a contract imposing specific obligations, I would prevail.
Regards,
Luis
P.S.:
To nordiste: Regarding references, ATA Code of Ethics has a provision similar to the one you mentioned:
---------------------------------------
E. I will use a client as a reference only if I am prepared to name a person to attest to the quality of my work. http://www.atanet.org/bin/view.fpl/13653.html
----------------------------------------
To N. Raghavan: Truth is defense in libel or slander cases; it is never a defense in a confidentiality breach action.


[Edited at 2004-07-11 17:41]


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Narasimhan Raghavan  Identity Verified
Local time: 14:12
English to Tamil
+ ...
I was careful to qualify my suggestions Jul 11, 2004

In effect you and I said the same thing. After much reasoning you concurred with my assertion that in the absence of a confidentiality agreement prohibiting the naming of clients, there is no bar to give the client list.

My reference to truth was limited only to the above eventuality, i.e. there is no specific prohibition to naming the client.

But it is amazing that clients, who prohibit their own name being cited, are all eagerness to know the names of my other clients and to them I give the reply that the prohibition works both ways. See my first posting about this in this thread.

As for the regulated professions such as law and medicine, I am sure doctors are prohibited from advertising as such and while I don't know about lawyers, at least the chartered accountants are barred from advertising their services in our country, which being an ex-colony of UK follows the Anglo-Saxon jurisprudence. Under this condition, it is obvious that client's name too is confidential.

Regards,
N.Raghavan

Luis Arri Cibils wrote:
As a general rule, in heavily regulated professions such as law and medicine, the client's name is confidential information. See, e.g., the following references:

But translation is, essentially, an unregulated profession. Is the name of a translator’s client still confidential information in this unregulated industry? Let me first assert something that I am sure will surprise all of you: No member of ProZ ACTUALLY believes that disclosure of a client’s name is a confidentiality breach. Of course we don’t!: We all disclose our clients’ names (and encourage others to do the same) on the Blue Board. True, there is nothing really secret being disclosed there. But saying that is the same as saying that a client’s name is not in itself confidential information in our industry.

Then, what is confidential information in the context of translation? Does it cover the client's name? We at least know what ATA appears to think confidential information is (and ATA takes a very narrow definition!). In ATA’s model contract, the confidentiality clause reads:

--------------------------------------------
7. Confidentiality. All knowledge and information expressly identified by Client in writing as confidential which Translator acquires during the term of this Agreement regarding the business and products of Client shall be maintained in confidentiality by Translator and, except as expressly authorized by Client in writing, shall not be divulged or published by Translator and shall not be authorized by Translator to be divulged or published by others.
http://www.atanet.org/model_contract.htm
--------------------------------------------
Thus, for ATA, confidential information is all knowledge and information EXPRESSLY IDENTIFIED BY CLIENT IN WRITING AS CONFIDENTIAL.

Of course, ATA may be wrong, and a court may disagree with ATA and construe the ATA Code of Ethics as imposing broader obligations when it reads:

To conclude, I would be careful and consult a local attorney expert in the area before publishing my clients’ list. Furthermore, I would evaluate whether it is worthwhile to publish it. Old clients may resent being named without their consent; they will unlikely stay as clients for long. Potential new clients may consider the translator untrustworthy and lacking any regard for the client’s well being; these prospective clients may never become actual ones. Finally, you can always describe your work saying something like: Translated from English to Swahili all the documentation (100+K words)pertaining to an offshore oil lease agreement for one of the 10 world's largest oil companies. Does it add much identifying that the client was Exxon, Shell or BP? (Incidentally, that is how I describe on my resume my past legal experience, being the legal area one where I know that I cannot disclose my clients’ names.)

On the other hand, if I have already published the list and now a client (likely now, a former client) is challenging that publication, I would not give up. It is highly likely that, in the absence of a contract imposing specific obligations, I would prevail.
Regards,
Luis
----------------------------------
To N. Raghavan: Truth is defense in libel or slander cases; it is never a defense in a confidentiality breach action.


[Edited at 2004-07-11 17:41]


[Edited at 2004-07-12 01:31]


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Anne Gillard-Groddeck  Identity Verified
Local time: 09:42
German to English
Separate agreements Jul 12, 2004

Quote
"Also do not forget that case is not a contract to fulfill a job, it is separete agreement. You mutualy fulfill your contractual obligations under an agreement and released at the end however freelancer sign another seperate agreement which has long lasting effect than original contract.(Sometimes they may be single one as well)"


This separate agreement would not be a contract under English law unless some form of consideration were given, this might be a promise of a job or "lots more work to come" or something like that, but something must be given in return even if it is not set out in writing. There must be an exchange of promises. In such a case the translator should get the agency to put the promise (whatever it is) in writing.

Unless the other side has made some sort of promise I can hardly see why a translator should sign a separate agreement that is not a contract. Of course the situation may be different under other jurisdictions.

If this agreement is contained as a clause in the original contract which comes to an end when the job is done, it should not be unduly onerous and unduly restrict the other party, so as not to be considered fully unreasonable. Inequality of bargaining power can be used as an argument if such inequality is abused. In itself it is hardly something that can be prevented.

There is nothing wrong in a justified interest in keeping a business secret (or similar) confidential. Disclosure of such secrets can cause enormous loss and this is fully reasonable. You write that you acknowledge this.


Quote
"Some agencies later started to add their name and their client project names to that confidetiality agreements. In fact there wa single confidentiality agreement regarding final clients's content for translation at the very begging. I only refuse this unless there is absolute justification to do so. Principaly a translator should not accept such kind of agreemnt article added to confidentiality to deprive him to show his expertise."

I do not quite understand what you are saying here , but I think it could be an important point.











[Edited at 2004-07-12 15:42][/quote]


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