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Translator liability clauses / European translation standard
Thread poster: xxxLia Fail
xxxLia Fail  Identity Verified
Spain
Local time: 17:26
Spanish to English
+ ...
Jan 22, 2005

Compare A and B

A. Clause re. translator liability:

The Translator shall be liable for the consequences of mistakes, omissions or other defects in his work and is therefore recommended to take out professional indemnity insurance cover.

B. Draft European Translation Standard:

5.3.4 Revision
The TSP (Translation Service Provider) shall ensure that the translation service product is revised. The reviser shall be a person other than the translator and have the appropriate competence in the source and target languages. The reviser shall examine the translation for its suitability for purpose. This shall include,
as required by the project, comparison of the source and target texts for terminology consistency, register and
style. The TSP shall take the corrective measures necessary to amend the translation or to retranslate, when applicable, in accordance with the TSP’s procedures.

***

I have been very reluctant to sign clauses like the above, becuase on the one hand, of the possibility of human error, and also becuase I have heard - odd as it may seem - that the fact that one has professional indemnity insurance may act as an 'encourgament' to someone to take action against one.

But - above all - there's a principle involved. If I contracted work from someone on behalf of a client, there is no way I would let the job through without a check (depending on the language combinations, by me, or by someone else contracted for the job), simply becuase I feel ultimately responsible to the client, and above all, it seems a sensible way to avoid potentially unpleasant situations (ranging from an unhappy client to a lawsuit). And I think all agencies have someone check jobs - or at least I assume they do, even though I often suspect they don't. But as far as I'm concerned, I apply my own principle (and assume it for agencies) - that one would be mad to let a translation through without a 2nd opinion, unless the translator was tried and true (and even then, a quick read... )

Furthermore, to my mind, it's fundamental in translation to have a 2nd opinion; we 'mediate' language, i.e between author and reader, and that implies an 'interpretation'. So barring gross error of fact, and assuming a translator has done a reasonable job, there are always sentences where others can give a different insight, or correct an ambiguity.

So, above I have juxtaposed a liability clause that says I must assume FULL reponsibility for what I write, and the Draft European Translation Standard (thanks to José Luis who kindly posted it recently) which indicates that the TSP (i.e. agency) is responsible for REVISING my translation. In other words, it seems like 'liability' clauses that makes translators wholly responsible for their work go against what is likely to become the EU standard for translation quality.

My own opinion is that I shouldn't sign such a clause, that I can offer guarantees (such as those cited in the same standard), that the agency is responsible for their selection processes and for revision of work.

Finally, based on my argument that translations REQUIRE - by their very nature - a 2nd independent reading, I could always offer to include revision by a 2nd translator who meets with the same translator/reviser specifications cited in the standard) at a marginally increased rate. I thereby comply with 'the translation quality standard'...not to mention common sense...and good business sense. Freelance translators are the vulnerable downstream suppliers, and to shift the full onus of liability onto us is, I think, somewhat excessive. Agencies employ freelancers becuase it suits their pockets....makes them more flexible, reduces their requirements for a full complement of in-house staff, etc.....

As for the sentence, "the Translator shall be liable for the consequences of mistakes, omissions or other defects in his work", this clause, in my opinion, is too far-reaching, becuase it simply rejects all "mistakes, omissions or other defects", without qualifying them in any way, and most especially the "defect(s)", which in 'ordinary' language, represent 'minor' errors (that said, see more 'legal' definition below). Taken to its logical (not necessarily rational) conclusion, a misplaced comma, a typo or a single spelling error could lead to trouble...imagine a costly print edition that had to be withdrawn becuase of a translation 'defect'.

I would like to hear other people's opinions of liability clauses in the EU translation standard context:-)


DEFECT:
A product's or service's nonfulfillment of an intended requirement or reasonable expectation for use, including safety considerations. There are four classes of defects: class 1, very serious, leads directly to severe injury or catastrophic economic loss; class 2, serious, leads directly to significant injury or significant economic loss; class 3, major, is related to major problems with respect to intended normal or reasonably foreseeable use; and class 4, minor, is related to minor problems with respect to intended normal or reasonably foreseeable use (see also "blemish," "imperfection" and "nonconformity").
www.asq.org/info/glossary/d.html



[Edited at 2005-01-22 03:13]


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Ken Cox  Identity Verified
Local time: 17:26
German to English
+ ...
regarding liability and defects Jan 22, 2005

Just a brief comment: in my experience, every commercial organisation attempts to assume as little liability as possible, and the liablity it actually assumes is governed by more or less specific contractual arrangements and legal provisions. A blanket assumption of liability without any definition of the limit of liability, particularly with respect to consequential damage, appears to me to be foolhardy, and imposing such an obligation on translators (or any other commercial entity) strikes me as being simplistic and unrealistic (to say the least).
As for errors and defects: translation is human work, and it is practically impossible to fully exclude errors and defects from such work. Software producers have so far successfully defended the position that they cannot guarantee that their products are free of errors due to the nature of the product (or rather, how the product is made), and just about every catalogue, data sheet and similar publication includes an 'errors and omissions' disclaimer. Why then should translators be obliged to assume liablity for all defects and errors, which practically amounts to saying they must ensure that their work is entirely free of errors? AFAIK, no such obligation exists for authors (except perhaps in specific contractual contexts), and we all know how often we have to translate texts that contain errors, not to mention the question of interpreting poorly written or ambiguous text. IMHO an obligation to make all reasonable efforts to avoid defects and errors would be more realistic (and possibly more legally defensible, but I'm no legal expert).

[Edited at 2005-01-22 15:50]


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Eva Blanar  Identity Verified
Hungary
Local time: 17:26
English to Hungarian
+ ...
A and B are different Jan 22, 2005

For a moment, I was also shocked to see that parallel between A and B, but please check: this formulation is not included in the draft European standard - it basically only describes what we do (or ought to do) anyway, in our everyday work.

It is evident that translation (and any business, indeed) can be done only on a "best efforts" basis, therefore, any attempts to make translation service providers or freelance translators sign a document about some unlimited liability appear extremely dubious to me and I would strongly disadvise to sign these. And not out of fear from responsibility, but because of the ugliness of an eventual dispute on who is responsible for a particular mistake.


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RobinB  Identity Verified
Germany
Local time: 17:26
German to English
Liability and the European Translation Standard Jan 23, 2005

Hi Ailish,

A few points and comments.

"The Translator shall be liable for the consequences of mistakes, omissions or other defects in his work"

In most countries, it is standard practice (and indeed a legal requirement) that service providers must warrant the quality of their services. Your quotation from the translator liability clause doesn't really say anything unusual, it's basically stating the blindingly obvious. Similarly, service providers generally have the right to remedy identified defects, though this will generally depend on the turnaround time for the work if the client is an intermediary.

"And I think all agencies have someone check jobs - or at least I assume they do, even though I often suspect they don't."

I think that's a very bold assumption indeed. I think very few agencies - basically at the high end of the market only - have any form of professional revision process, as opposed to e.g. specialist translating companies and partnerships (like us), as well as various freelance translator collectives and networks, where revision is generally a mandatory part of the process.

In most cases, though, any "revision" by agencies is generally limited to a quick formal check (All the pages and files there? Correct target language? That sort of thing). The new European Translation Standard will not apply to these agencies; they won't be able to obtain certification because they won't be able to demonstrate documented revision processes, among other things.

"which indicates that the TSP (i.e. agency) is responsible for REVISING my translation."

Please note that in the Standard, the TSP is any translation service provider, not just an agency. For example, a freelance translator can also be the TSP, provided that he/she ensures that the translation is revised by a reviser who satisfies the criteria set out in the Standard.

"In other words, it seems like 'liability' clauses that makes translators wholly responsible for their work go against what is likely to become the EU standard for translation quality."

I don't think this is the case at all. I hope that nobody thinks that translators shouldn't take responsibility for their own work, just because the translation is being revised! Or that their legal liability is in any way diminished by the fact that the translation will be revised. Of course it goes without saying that every translation must be produced to the highest standards, and the fact that the translation is being subsequently revised doesn't affect the translator's responsibility in the slightest. To borrow the phrase used by Robin Williams in his Golden Globe acceptance speech, revision isn't a "syntax repair shop"! Rather, it's there to pick up on the "one that got away", not to rewrite a sloppy translation.

"I would like to hear other people's opinions of liability clauses in the EU translation standard context"

I don't think that liability is affected in the slightest by the European (not EU) Translation Standard. Liability is a legal (and possibly a moral) issue, while the new Standard addresses process quality issues. Liability is governed by law (and possibly by contract as well, provided that the contract is equitable), not by any published quality standards.

Robin


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Samuel Murray  Identity Verified
Netherlands
Local time: 17:26
Member (2006)
English to Afrikaans
+ ...
TSP = you Jan 27, 2005

Ailish Maher wrote:
... and the Draft European Translation Standard (thanks to José Luis who kindly posted it recently) which indicates that the TSP (i.e. agency) is responsible for REVISING my translation.


Are you sure the agency is the TSP? Aren't *you* the TSP, unless you work via an agency, in which case you and the agency are both the union of the TSP?


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xxxLia Fail  Identity Verified
Spain
Local time: 17:26
Spanish to English
+ ...
TOPIC STARTER
TSP is ultimately responsible to client Jan 28, 2005

Samuel Murray-Smit wrote:

Ailish Maher wrote:
... and the Draft European Translation Standard (thanks to José Luis who kindly posted it recently) which indicates that the TSP (i.e. agency) is responsible for REVISING my translation.


Are you sure the agency is the TSP? Aren't *you* the TSP, unless you work via an agency, in which case you and the agency are both the union of the TSP?


My understanding of TSP is the agency/individual ultimately responsible to the client who commissions the translation. So I am a TSP with my own clients only, not when I work via an agency:-)


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aldazabal
English to Spanish
How far should TSP liability reach? Feb 14, 2005

Ailish wrote “imagine a costly print edition that had to be withdrawn because of a translation 'defect'”. What about a print edition that is not withdrawn and causes damages to 5000, or 50.000, readers? Or a multimillion spaceship crashing on Mars because some translator mistakenly wrote miles instead of kilometers? Of course, things would be different if that mistake is made by an employee of the Space Agency. After all, we all are human beings and therefore, prone to err. By the way, we translators are some kind of C3PO robots who should provide perfect translations or else…
However, the question is not to whether we are responsible, but how far does our responsibility reach. In my opinion, except in cases of gross negligence, it is unrealistic to impose a “blanket liability clause”. Incredible though it may seem, that is exactly what the ETS does; I wonder if the standard makers have ever considered how translations are made in the real world. When all the blah blah about experts, revisions, checks and cross-references quiets, what’s left is the cheapest freelance translator available, a text, a computer and a tight schedule. Our professionalism is to be credited with the miracle of making good translations in these circumstances. But one thing is to be proud of our professionalism and another to fall into that kind of “professional machismo” that imposes on us the unrealistic duty of performing a 100% perfect job, day in day out. We, as individuals performing a profession, are going to make mistakes. That’s a fact. And no system condemning us to the eternal fires of hell if we allow a mistake to slip into a translation is going to change that fact.
What we need is a quality system that prevents such mistakes from reaching the end user, and in cases where they do reach the end user, that establishes workable remedies to correct the mistakes and to offer the customer some kind of compensation. Some kind of compensation, not a full and absolute compensation for any consequential damage that may be caused. As customers, we all like a free ride, but in the end, you get what you pay for. Some corporation paying $30 for the translation of a letter of credit for an amount of $100.000 cannot reasonably expect to be fully covered for such amount if the translator has made a mistake. The same goes for a $10.000.000 letter of credit, especially if we take into account that the translation fee would be exactly the same, i.e. $30.
On the other hand, if such a blanket liability framework is imposed on the industry, or on the profession, the professional translation world, as we know it, is doomed. In such scenario, sooner or later, an unhappy customer shall claim for consequential damages, and sooner or later consequential damages shall be awarded. And it would be only a matter of time that a 300 word translation of a letter of credit, invoiced at $30, turns into a $100.000 liability for the translator / agency. Or into a $10.000.000 liability. Same texts. Same mistakes. Same fees. Different underlying values, and wildly different liabilities. And the same thing happens almost with any example you may think of. Airbus planes or model planes. Autopsy reports or diagnosis reports.
That marks the first boundary a workable liability framework should never cross: if fees are not related to the underlying value of the transaction, liability should not be related to that underlying value either. In these cases, maximum liability should be limited to the amount charged for the service.


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xxxAdrian MM.
Local time: 17:26
French to English
+ ...
No reference to urgent jobs with tight deadlines Feb 15, 2005

Add a disclaimer for urgent overnight and weekend work when no reviser - except at the other end of the globe - is available. The drafters of this standard must be working snail-pace inhouse at EU institutions.

Edit the Standards clause according to time constraints and the liability of any interpolated agency that charges a hefty mark-up and, in so doing, implies added value, whether or not they actually do a cursory check.

[Edited at 2005-02-15 11:49]


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