What is the extent and basis for a translator's liability in mistranslation? Thread poster: Ravishankar Govindraj
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I have read in forums about a translator being liable for mistranslation. No individual would deliberately mistranslate. But since all are human there could be inadvertent errors either due to insufficient competency or lack of resources or it could be a plain typo. However how does it make one liable and to what extent? Then in the case of agecies there are always reviewers and back translators to point out such errors before any disaster occurs. So how can the poor translator become liable? Wh... See more I have read in forums about a translator being liable for mistranslation. No individual would deliberately mistranslate. But since all are human there could be inadvertent errors either due to insufficient competency or lack of resources or it could be a plain typo. However how does it make one liable and to what extent? Then in the case of agecies there are always reviewers and back translators to point out such errors before any disaster occurs. So how can the poor translator become liable? What is the legal view on this?
[Edited at 2006-07-25 09:54] ▲ Collapse
| | | | Sonja Tomaskovic (X) 
Germany
Local time: 17:52
English to German
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Then in the case of agecies there are always reviewers and back translators to point out such errors before any disaster occurs.
Not in case of all agencies. It happened once to me that an agency claimed they proofread all translations but did not.
To what extent translators are liable for their work should be outlined before the translation work is accepted. At least that is what I learned from experience.
Sonja
| | | | Richard Creech
United States
Local time: 11:52
French to English
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| A Hypothetical Question it Appears | Jul 25, 2006 |
I have asked this question many times, but no one has ever been able to point out to me a single instance of a translator being successfully sued for mistranslation. People talk about it as a possibility, and occasionaly I have heard of settlements, but no actual cases of completed lawsuits. If anyone knows of one, I would love to hear about it.
As a hypothetical matter it is certainly possible for a translator to be held liable for a mistake, just as anyone can be (a car accident... See more I have asked this question many times, but no one has ever been able to point out to me a single instance of a translator being successfully sued for mistranslation. People talk about it as a possibility, and occasionaly I have heard of settlements, but no actual cases of completed lawsuits. If anyone knows of one, I would love to hear about it.
As a hypothetical matter it is certainly possible for a translator to be held liable for a mistake, just as anyone can be (a car accident, a doctor's malpractice, etc.). The precise circumstances under which a translator will be liable will vary from country to country, as laws are different. In the United States, a translator will not be liable as long as he exercised reasonable care in performing his task. That is to say, as long as he acted reasonably and took all appropriate care, he will not be liable for reasonable mistakes. ▲ Collapse
| | | | | Not all agencies have proofreading. | Jul 25, 2006 |
Dear Ravishankar,
It is definitely true that not all agencies have proofreading done. I have been working for a European agency for quite a while now where they do not have proofreading.
The whole translation from start to finish is the responsibility of the translator.
Lucinda
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Susana Galilea
United States
Local time: 10:52
English to Spanish
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Richard Creech wrote:
In the United States, a translator will not be liable as long as he exercised reasonable care in performing his task. That is to say, as long as he acted reasonably and took all appropriate care, he will not be liable for reasonable mistakes.
Thanks for your input, Richard, I wasn't aware of this particularity. Would you be able to elaborate on what constitutes a "reasonable mistake"?
Cheers,
Susana
| | | | George Young (X)
Local time: 16:52
Italian to English
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Then in the case of agecies there are always reviewers and back translators to point out such errors before any disaster occurs.
I can corroborate what Lucinda says, I work for a translation company and proofreading is only included in the process if expressly requested by the client.
Would a freelance translator be wise to take out a professional idemnity insurance to guard against this sort of possibility?
| | | | Richard Creech
United States
Local time: 11:52
French to English
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| Ah, there's the rub! | Jul 25, 2006 |
Susana Galilea wrote:
Thanks for your input, Richard, I wasn't aware of this particularity. Would you be able to elaborate on what constitutes a "reasonable mistake"?
Cheers,
Susana
That's what juries are for. They, in the end, would make this determination on the facts of the specific case. It is very difficult to say anything definitive, but as long as you work conscientiously, devote appropriate time to a project, don't take projects you know you are unqualified for, you would be in a good position to defend yourself. It is worth pointing out, however, that insurance is available for this risk for those who are super risk-averse.
| | | | | Responsibility of the Agency | Jul 25, 2006 |
Lucinda Hollenberg wrote:
Dear Ravishankar,
It is definitely true that not all agencies have proofreading done. I have been working for a European agency for quite a while now where they do not have proofreading.
The whole translation from start to finish is the responsibility of the translator.
Lucinda
Thanks Lucinda
From experience I find that proof reading one's own document is a strenuous and futile task if you do it immediately. Review and proof reading if done by the same individual need a time gap of doing something else for a time period. The longer the time gap the better. Given the time constraints experienced by the industry is it not worthwhile that different individuals do this task so that the end result is free of errors instead of putting the onus on one individual?
Ravishankar
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| Hypothetical but implications are practical | Jul 25, 2006 |
Richard Creech wrote: Susana Galilea wrote:
Thanks for your input, Richard, I wasn't aware of this particularity. Would you be able to elaborate on what constitutes a "reasonable mistake"?
Cheers,
Susana That's what juries are for. They, in the end, would make this determination on the facts of the specific case. It is very difficult to say anything definitive, but as long as you work conscientiously, devote appropriate time to a project, don't take projects you know you are unqualified for, you would be in a good position to defend yourself. It is worth pointing out, however, that insurance is available for this risk for those who are super risk-averse.
Thanks so much Richard for your informative responses and Susana for her wonderful response.
Now the basic question is who will judge anyone elses' translation and how to deliver error free translation. There is no jurisprudence in any country at present which will evaluate reasonability of care and precaution accross languages which they do not understand and have no idea about. For example say I have done a French to Swahili translation to the best of my abilities. I got the job only because I underquoted for a Swedish firm. Now which laws will apply. And every agency lists all the languages and as pointed out by Lucinda et al not all of them are equipped or care to proof read by other individuals. So should not the agencies specialize to particular langage pairs where they have competence in house? Or should not the translators proof read and review others works?
As for the practicality of translations being reviewed by other individuals before delivery, reducing the liability of translators I can sight the example of 'Mokusatsu' from Japanese. I have forgotten the quote but will try to furnish you.
Thanks a lot. I am also looking for good case of mistranslation!
Ravishankar
[Edited at 2006-07-25 20:52]
| | | | | The "non-existing" (maybe) standard of reasonable care for translators | Jul 25, 2006 |
Susana Galilea wrote:
Thanks for your input, Richard, I wasn't aware of this particularity. Would you be able to elaborate on what constitutes a "reasonable mistake"?
Cheers,
Susana
Hi, Susana:
I was waiting, smiling , for Richard to provide guidance, without any case law (No, Richard, I do not know of any malpractice case against a translator litigated all the way to a final decision; I do not know if any exists, although it might), regarding the standard of reasonable care for a profession that to a large extent does not have such standards. Certainly, ATA and other organizations pass or fail certification exams; they apparently have some standards, but, by and large, as with pornography, we identify a bad translation when we see one.
Sometimes it is easy to identify when a certain translation does not meet the standard of reasonable care. Could the error have been identified if the translator had run a spellchecker? Probably, it is "reasonable" to expect that a professional translator would had run it. But, then, the error must not only be “unreasonable,” it must also have caused damage.
Sometimes, some issues are more troublesome: Were the dates and numbers in the translated document checked so that a person reading the translation would correctly understand those dates and numbers? For example, if the document, say a contract, in the source language said that “buyer shall pay the balance of the purchase price by 1/2/06 or lose all rights to the deposit”, and the translation is ambiguous, or wrong, as to whether that date, in the target language, means, as in English, January 2, 2006, would the translator be liable if the buyer goes on January 3, well ahead of February 1 but after January 2, and the seller refuses to complete the transaction or to return the deposit?
As a patent attorney apprentice, the lead attorney instructed me to confirm with the inventor whether 3 ft was equal to 0.915 m (when I was writing a patent application where the supporting document provided by the client had the figure in the English system and I had to put also, between parenthesis, the equivalent number in the metric system.) I do have a PhD in Chemical Engineering, but, I sent an email to the client, asking them to confirm the unit conversion. Is it reasonable to ask the client for confirmation? Is it reasonable to do the conversion without asking? Is that part of a translator´s standard of care?
What is reasonable care? Without case law and/or generally accepted translation principles (GATP, as a wordplay on GAAP), we can only answer that question as a hypothetical, perhaps in a Law School format, where the professor, following the famous/infamous “Socratic approach,” asks the class, whose members may end up being defense or plaintiff attorneys, for them to debate and provide answers from both sides of the fence.
And then, what about missing a deadline? Assume that, 10 minutes before delivery time, your computer crashed. Is that an Act of God or force majeur excusing your performance under the contract? Is it part of the standard of reasonable care that you have a backup? Probably yes, for a professional translator, but then, is there any case law or statute explicitly saying so? Are you liable to the agency? What does, if anything, your contract say? The translation cannot be delivered on time, are you liable to the end client who miss an important deadline, perhaps losing all patent rights or a court case? You have no contract with the end client, but are you liable in tort? The agency losses all business from that client? Are you liable for that? Can the agency remedy, i.e., provide a new translation? Is there time to provide a remedy? Should have the agency provide for that?
As you see, there are many issues. I would never assume that because you deal with an agency you have no liability. I would not assume that the agency MUST provide a proofreader, either. Is the industry standard, in the relevant place (jurisdiction) that a second linguist be provided? What does your contract say, if anything, about it? What does the contract say about consequential damages? Does the contract limit your liability to the amount of your fees? Does the contract say that you are liable for any damages the agency may suffer, including, maybe, future business from the disappointed end client? Is providing a proofreader part of the agency's standard of reasonable care? Can the end-client sue you directly?
As you see, there are no clear answers. Be happy with it. That also means that few, if any, translators have been sued.
The best protection is following Richard’s advice: not taking assignments that are over your head, being absolutely respectful of any deadlines set and following any instructions agreed upon with the agency. You will not end up “pornographically naked” for the rest of the translation world to identify yours as a bad translation, or a court or jury to say so.
Insurance is an available, perhaps advisable, alternative. I am not sure whether I agree with Richard that this alternative is for the extremely risk-adverse people, only. But certainly, having insurance will make you a deep pocket, perhaps attracting lawsuits. As I said in another forum, having insurance may be wise; keeping quiet about it might also be wise.
Regards,
Luis
[Edited at 2006-07-25 23:28]
| | | | Susana Galilea
United States
Local time: 10:52
English to Spanish
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Luis Arri Cibils wrote:
But certainly, having insurance will make you a deep pocket, perhaps attracting lawsuits. As I said in another forum, having insurance may be wise; keeping quiet about it might also be wise.
This has always been my understanding as well
Regards,
Susana
| | | | Judy Rojas
Chile
Local time: 11:52
Spanish to English
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| Careful, you are liable! | Jul 26, 2006 |
I just returned from the Association of Language Companies 2006 congress and heard the following true story.
One of the members accepted a US$ 2,400.00 assignment from one of his best clients.
The project was the translation of a brochure and included DTP. A few days after delivery to the client, the brochures were printed, and low and behold! The translator had misspelled a name several times throughout the document.
The client asked the agency to pay the ... See more I just returned from the Association of Language Companies 2006 congress and heard the following true story.
One of the members accepted a US$ 2,400.00 assignment from one of his best clients.
The project was the translation of a brochure and included DTP. A few days after delivery to the client, the brochures were printed, and low and behold! The translator had misspelled a name several times throughout the document.
The client asked the agency to pay the cost of reprinting the brochures, US$ 97,000.00.
The document (in Arabic) had been translated, edited and proofread by 3 different people, and then the artwork had been proofread before delivering to the client. Still, the names were misspelled!
The agency had to pay the money and then started to look at the translators to recover. I have to say I don't blame them.
So, if you can get errors and omission insurance, by all means, get it.
Regards,
Ricardo ▲ Collapse
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| Agencies' liability | Jul 26, 2006 |
Ricardo Martinez de la Torre wrote:
So, if you can get errors and omission insurance, by all means, get it.
Agencies (and ocassional outsourcers) have a larger exposure. They have a contractual relationship with the end client. The contract may provide or exclude consequential damages (such as paying the reprinting of a badly translated brochure (or a brochure having, as in this case, simply, a misspelled name, an equivalent to my example on dates and numbers.))
Agencies (and ocassional outsourcers) should be prepared to answer for the consequences of those mistakes and, probably, they will be well advised getting malpractice (errors and omissions, or E&O) insurance. This is something that should be had in mind by the ocassional outsourcer to ponder while s/he licks his or her chops thinking on the humongous profits that can be made hiring cheap translators.
An interesting question, Ricardo, would be whether that agency turned around and sought recovery, partial or in full, from the three linguists involved in the translation, proofreading and editing of the brochure.
Regards,
Luis
[Edited at 2006-07-26 00:43]
[Edited at 2006-07-26 00:43]
| | | | | Interesting conversation | Jul 26, 2006 |
I always thought insurance was advisable, although I have yet to take out any, as I deal with agencies who - fortunately, do proofread my work. On the other hand, I don't think all agencies do this or indeed do it on a regular basis.
How many of you give your translations to friends or family etc. to be checked?
I've heard that when starting out in translation - to convince agencies and clients of your ability to translate error free - you should pay someone to proofrea... See more I always thought insurance was advisable, although I have yet to take out any, as I deal with agencies who - fortunately, do proofread my work. On the other hand, I don't think all agencies do this or indeed do it on a regular basis.
How many of you give your translations to friends or family etc. to be checked?
I've heard that when starting out in translation - to convince agencies and clients of your ability to translate error free - you should pay someone to proofread your translations. Have many of you done this? ▲ Collapse
| | | | Pilar T. Bayle (X)
Local time: 17:52
English to Spanish
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| It's actually the best idea to prevent rate dumping... | Jul 27, 2006 |
I've heard that when starting out in translation - to convince agencies and clients of your ability to translate error free - you should pay someone to proofread your translations. Have many of you done this?
It just makes sense for new translators. They request rates that are decent so that they can afford a good/experienced proofreader. They part with a certain amount but they continue learning. And in the process, they deliver quality and they maintain the rates in the market.
Nevertheless, there was a lot of talk about this in one of the mailing lists I subscribe to, and new translators were trying to get this service for free... So it didn't go anywhere, but it is a good idea. I fail to see it in practice anywhere, though.
Interesting topic
P.
www.pbayle.com/blogs-english
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