Have I broken confidentiality with this non-payer? What do I do next?
Thread poster: DJHartmann

DJHartmann  Identity Verified
Australia
Member (2014)
Thai to English
+ ...

MODERATOR
Oct 12

Welcome to the world of NAATI!

Within the first month of being NAATI certified, I've had my first non-payment issue.

Completed a translation for the "person in question", who was very poor with email communication and totally disappeared after I delivered the job.

It was clear that this "person in question" was an agency or representative of the end-client.

As the email used by the "person in question" was a personal email, it was difficult but I managed to find the migration agency that they were affiliated with.

I tried calling but it appeared that the office this "person in question" was working at had since closed down.

They had a second branch in a different city. I called this branch and asked whether this was XXXX Migration and the person who answered said "no", but then clarified that they were the person that I was trying to call (details on website) and knew the "person in question" who had hired me to complete the translation. This person turned out to be very helpful and asked me to forward the invoice/emails to them, and they'd help me sort it out.

Within a couple of hours I finally received a phone call from the original "person in question". They were quite upset, accusing me of breaching protocol etc and as the connection was poor, all I asked for was a reply to my emails!

After no reply for a significant amount of time, I received an email saying:



That they were my client and that it was unacceptable that I had completely breached the privacy and confidentiality.

They mentioned that they would have to escalate this issue officially to the relevant authority

They asked on what grounds did I disclose the client's enquiry to an unauthorised and non-associated third party? Accusing me of disclosing not only the nature of the client's enquiry but also the entire communications records. (this is an exaggeration!)

They finished the email saying, that they would seek the relevant action required.


I responded for them to please do take a look at what was “disclosed" before threatening to escalate the issue.

That, being a NAATI accredited translator, I take confidentiality and privacy very seriously and in no way were any client details or was the content of this translation revealed.

I mentioned that their non-payment and non-reply to emails was revealed to the third party, who I considered a colleague working for the same agency, and who was very helpful with this matter.

I had to consider them a non-payer after their email silence and managed to find the agency they were affiliated with through an online search (it was actually youtube videos that connected the anonymous email with the agent's name).

I thanked for their immediate payment after my escalation.




I did forward the emails but removed anything about the job and included only the issue of non-payment. Some of the delivery specifics were also included (i.e. to post or just scan and send) but nothing about the content of the job or the end-client.

As the "person in question" is an agent, not a client, have I broken confidentiality like she accuses me? I don't think so, but this might be viewed alternatively. I got sent the payment, so whatever I did worked! This experience has really made me treasure the agencies I work with rather than have direct clients! All this stress for a minor sum!

Let me know your thoughts, recommendations.



[Edited at 2017-10-12 18:25 GMT]


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Nikki Scott-Despaigne  Identity Verified
Local time: 17:58
French to English
Difficult to know Oct 12

I admit that I am not certain that I have grapsed the full sequence of events through the meanderings of your post. It is the end of the day though!

Have you breached any confidentialty rules? I suppose that would depend on the nature of the NDA you have with the client. Some agreements can be breached by the very fact of enabling a third party to have knowledge of the fact that you are translating for a particular client. Why? Because sometimes just a little piece of information can enable a third party to reach a number of conclusions, ture or false, particularly if he/she has other bits of information about the client. That information can then be passed on and/or used in such a way that it could bring prejudice to some party or other.

In practical terms, it could simply be that the client is upset and embarrassed that others found out that he had not paid you. Bad for the image. If that's the case, then it's his own fault. Failure to pay basically amounts to a breach of fundamental term of a contract. Does that entitle you to breach the NDA? Probably not. Does that entitle you to let others know that the person owes you money? And is that in itself a brach of confidentiality? I don't know, but when I have had real problems being paid, I have contacted others who work with the client to let them know and make sure they take care in their dealings with them. I have then taken formal steps for recovery.

From what you say, it might have been a better idea to simply send a mail to the new agency (if that's what this is) asking if they had contact information for Mr X. Again, if I have understood events correctly, it was probably not a good idea to provide information on why you needed to contact him. It could reflect badly on you, in spite of the fact that everyone can understand how horrible it is not to be paid on time.

I hate bad payers. We all do. It gets me really cross as it can cause real problems. You have to react quickly in order to be able to take adequate action to recover payment that is due. Apparently you have done this. The client's failure to provide contact information and/or to ensure that calls, mail, etc. were forwarded is not particularly professional behaviour on his behalf. He might just have been sloppy, he might have done so deliberately.

All you can do now is to wait and see if he pursues the matter. In any event, the initial breach is on his part for not having respected the terms of payment.

Edit: What do you do next? Wait and see and if it heats up, seek appropriate professional legal advice. If you have professional indemnity insurance, there may be some cover for fees incurred.

[Edited at 2017-10-12 18:12 GMT]

Edit 2: It has just dawned on me that you have posted extracts of exchanges here. In view of the circumstances, even if it is anonymous, it might have been a better idea to provide a summarized version.

[Edited at 2017-10-12 18:14 GMT]


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DJHartmann  Identity Verified
Australia
Member (2014)
Thai to English
+ ...

MODERATOR
TOPIC STARTER
Thanks, some clarifications Oct 12

After some time spent considering, I see their argument:

Whereas I consider the end-client as being the 'client' deserving protection of confidentiality, this 'person in question' considers themself the 'client' for whom I had no right to discuss any of the matter with anyone else.

At no time did this cross my mind, I fully considered them to be an agent and the third party who helped me receive payment was their colleague, not an 'unauthorised and non-associated third party'.

Either way, in hindsight, I might have been better to consider this person a private individual rather than an agency.

Anyway, I've put in an application for indemnity insurance!


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Nikki Scott-Despaigne  Identity Verified
Local time: 17:58
French to English
Privity of contact Oct 12

You have what is called "privity of contract" with your client. Your client is the person who instructed you to do the work and who is the one who agreed at the outset to pay you. That's from a contractual point of view. You have no contractual responsibility to anyone else here. Again, as I pointed out earlier, your contract may impose a certain number of obligations upon you with regard to confidentiality/disclosure, etc.

Then comes the law of tort, describing civil legal obligations which means you might have to bear in mind the potential impact of your acts/omissions on third parties. One of the most common areas of tort law is "negligence". Something called a "duty of care" can be owed to parties you ought "reasonably" to have borne in mind, your client but also other third parties. I'm not Australian, but I do believe that the legal system there is based on the English system. I have rather basic knowledge of English law but this type of info is easily accessible on the internet. It does help to have some basic notions when running a professional activity.

In your business deaings, obligations, responsibilities, duties, liabilities, etc. can therefore co-exist in contract and in tort.

I suspect the guy is just angry that others found out he owed you money.

[Edited at 2017-10-12 18:32 GMT]


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The Misha
Local time: 11:58
Russian to English
+ ...
Scorched earth Oct 12

Never mind confidentiality. By failing to live up to his end of the bargain, the other party would automatically release you from any and all of your own contractual obligations in most Western jurisdictions. Leave no stone unturned and take no prisoners. Get paid. With extreme prejudice, as lawyers and hired assassins put it:)

All is fair in love, war and debt collection.


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Nikki Scott-Despaigne  Identity Verified
Local time: 17:58
French to English
Haha! Oct 12

The Misha wrote:

Never mind confidentiality. By failing to live up to his end of the bargain, the other party would automatically release you from any and all of your own contractual obligations in most Western jurisdictions. Leave no stone unturned and take no prisoners. Get paid. With extreme prejudice, as lawyers and hired assassins put it:)

All is fair in love, war and debt collection.


Quite! Like I said, when I had someone owe me a fairly substantial amount of money, the first thing I did was inform others working for them to be really careful. Any claim for breach of an NDA would be countered by the initial breach of a fundamental term : non-payment.


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DJHartmann  Identity Verified
Australia
Member (2014)
Thai to English
+ ...

MODERATOR
TOPIC STARTER
No NDA Oct 12

Nikki Scott-Despaigne wrote:

Your contract may impose a certain number of obligations upon you with regard to confidentiality/disclosure, etc.



No NDA was given and all contact was very informal, oddly informal considering the content that I was asked to translate...

I had suspicious feelings from the beginning but as I'm relatively new to direct clients with NAATI, I thought best to be 'trusting' (everyone else has paid immediately!) and then things turned bitter....


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Daria Bontch-Osmolovskaia
Australia
Local time: 02:58
English
+ ...
Don't worry Oct 12

I think you acted correctly. Well down for finding some leverage and getting paid!

The guy is just pissed off that he was found out. He won't sue you if the amount if small - the lawyers are expensive! He sounds dodgy as.

I would strongly suggest that, in the future, insist on 100% upfront payment from direct clients. No money, no honey People are usually reasonable, the sums in question are usually small and it makes life so much easier. If they refuse, that's your warning bell.

It's just too hard otherwise to extract payment from dodgy individuals, and when it's just a $30 certificate, you are not going to splurge out on a debt collector, are you ... especially when there is no PO, the contract is a verbal agreement and they are using a private email.


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Patricia Will  Identity Verified
Australia
Local time: 00:58
Member (2004)
German to English
Have I broken confidentiality with this non-payer? What do I do next? Oct 12

I agree with Daria, always ask for payment in advance with those small jobs for private individuals. I don't do these kinds of jobs any longer but when I did I always got paid upfront or they paid on collection if they lived locally. Most clients accepted this as perfectly normal.

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Dan Lucas  Identity Verified
United Kingdom
Local time: 16:58
Member (2014)
Japanese to English
Um... Oct 13

DJHartmann wrote:
oddly informal considering the content that I was asked to translate...

You should trust that gut feeling more. That was the time to make your excuses and leave.

Dan


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John Fossey  Identity Verified
Canada
Local time: 11:58
Member (2008)
French to English
Checking credit worthiness of direct clients Oct 13

DJHartmann wrote:

No NDA was given and all contact was very informal, oddly informal considering the content that I was asked to translate...

I had suspicious feelings from the beginning but as I'm relatively new to direct clients with NAATI, I thought best to be 'trusting' (everyone else has paid immediately!) and then things turned bitter....


I'm not sure why translators seem to often think they should treat direct clients the same way as agencies. With agencies, we tend to be dealing with a somewhat known quantity, with the BlueBoard, reports from other translators, etc.

But in the end client business world, it's quite uncommon for companies to do business without performing some sort of due diligence first. As a minimum, most businesses expect to have to open an account and provide two or three credit references, who will state whether the client is a good payer. If the amount is larger (more than a few hundred dollars) it is quite normal to call for a bank credit experience (where your bank inquires of their bank as to how credit worthy they are). For even larger amounts, in the thousands, it's normal to purchase a credit report from a reporting agency such as Dun & Bradstreet.

No legitimate business would hesitate to agree to such checks. And if they did complain, it should ring loud alarm bells.


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Samuel Murray  Identity Verified
Netherlands
Local time: 17:58
Member (2006)
English to Afrikaans
+ ...
@DJ Oct 13

DJHartmann wrote:
No NDA was given and all contact was very informal, oddly informal considering the content that I was asked to translate...


It could be that the client simply assumed that you're a professional translator, i.e. that you would act in accordance with that which is usually written in an NDA without having to sign an actual NDA.

DJHartmann wrote:
I completed a translation for the "person in question", who was very poor with email communication and totally disappeared after I delivered the job.


How long did you wait before you realised that the client had disappeared? What were the payment terms?

It was clear that this "person in question" was an agency or representative of the end-client. ... As the email used by the "person in question" was a personal email, it was difficult but I managed to find the migration agency that they were affiliated with.


When you say "email", do you mean "email" or do you mean "email address"?

I've also had PMs from agencies contact me via their personal e-mail accounts. When that happens, I specifically ask whether the job is for them personally or for the agency. After all, the fact that someone works at a translation agency doesn't mean all their translation needs relate to the agency or are the business of the agency. But sometimes PMs have emergencies and use their personal e-mail accounts for company business when they're unable to use their company e-mail accounts.

I'm no lawyer, but my personal opinion is that one should also be allowed to rely on clues in the e-mail to determine whether the job is from the person privately or from his company. For example, if the e-mail mentions the name of the agency in such a way that it appears that the person is claiming to be acting in his capacity as an employee of the agency (as opposed to simply serving as an introduction). Or for example, if the e-mail has a signature from the agency. Ideally, however, you should ask, to make sure, but I understand that some PMs don't know how to communicate.

The other issue here is whether you should consider all employees of the agency to be privy to the confidential information in each individual project. And I'm afraid that unless it is a very small agency, the truth is that confidential information is usually not shared between projects and between project managers. The one exception, I think, is the accounting department (if you communicate with the accountant then you would normally reveal information about the job). In fact, I don't even think you should consider PM's boss as someone with whom you are free to share confidential information about the job you're doing for the PM.

You're free to contact other branches, departments etc. if you need information, but unless you have been introduced by the PM to those people as people who are involved in the project, then ideally you shouldn't even reveal why you're calling (i.e., that you're a translator and that the reason you're looking for that person is because you did or would do a translation for them).

I tried calling but it appeared that the office this "person in question" was working at had since closed down.


Did the person tell you that that is the company and branch that he's working for? Or did you simply guess that, based on a web search?

They mentioned that they would have to escalate this issue officially to the relevant authority.


Do you know who this relevant authority is?

They asked on what grounds did I disclose the client's enquiry to an unauthorised and non-associated third party?


Well, in order to get the necessary information, if a client disappears, you should be allowed to do enquiries, and this would necessarily cause some information to become revealed. The question an arbitrator might ask is whether you had revealed too much during your search for information.

From what you described, I think that IF this is a genuine case of a disappearing client (and by that I mean: days/weeks of no response), I think it would have been okay for you to contact the other branch and tell them that you're looking for that person. It may even have been okay to tell them that you're a translator (because that information can be googled easily), but I'm not sure if it would have been okay to imply that you had done a translation. In fact, I would personally not mention translation at all -- all they need to know is that you need to contact that person for private purposes.

I thanked for their immediate payment after my escalation.


Does that mean that they paid or does that mean that you were asking them to pay?

As the "person in question" is an agent, not a client, have I broken confidentiality like she accuses me?


At many agencies (less so in the translation world, though), agents get paid commission, and so there is competition between agents, and sometimes agents steal clients from each other. The end-clients don't always realise this, and will continue to cooperate with anyone representing the agency, as long as the job gets done, without realising that their account has actually been hijacked by another agent from the same agency. You should not be the one to hand over details of a job from one agent to another unless you are certain that both agents are working together on that account.


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 17:58
Member (2005)
English to Spanish
+ ...
Here is the key to it all! Oct 13

DJHartmann wrote:
I mentioned that their non-payment and non-reply to emails was revealed to the third party, who I considered a colleague working for the same agency, and who was very helpful with this matter.

In my opinion, this, and nothing else, is the key to the whole affectation and the threats. You exposed them and their little intention to pay for your services!

Do not be too worried about it. It all sounds like empty threats they will forget in a couple of days. Should they take this matter forward in any sense, you can clearly prove that your only intention was to locate the disappeared outsourcer to solve a payment issue, not to reveal the nature or contents of the translation you did.


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DJHartmann  Identity Verified
Australia
Member (2014)
Thai to English
+ ...

MODERATOR
TOPIC STARTER
Response: Oct 18

Samuel Murray wrote:

It could be that the client simply assumed that you're a professional translator, i.e. that you would act in accordance with that which is usually written in an NDA without having to sign an actual NDA.


It seemed more suspicious than this, both over emails and over the phone.


Samuel Murray wrote:

How long did you wait before you realised that the client had disappeared? What were the payment terms?


Payment on delivery. There had been silence for 2 weeks since delivery. No response to delivery email, or follow up emails. This is when I began trying to find the agent's identity. They had used a personal gmail account that linked to no social media profiles. There was only one result on Google, which was from a foreign language forum, which posted reflections about a city event. Google translate helped me get the gist of the article (I don't read that language) and it also showed me the professional position held by this person. With a few more search queries I found this person representing the agency that they worked for on YouTube and found the contact details for the agency. Trying to call the agency office, I realised that all the phone numbers had been cut-off. There had been no activity since 2014 on the website (feedback etc.). This is when I tried contacting a branch in another city. The person answering the phone first denied that they were from this migration agency but confirmed that they were the person whom I was trying to contact and were pleased to help.




When you say "email", do you mean "email" or do you mean "email address"?


Email address.

I specifically ask whether the job is for them personally or for the agency.


Good suggestion!



You're free to contact other branches, departments etc. if you need information, but unless you have been introduced by the PM to those people as people who are involved in the project, then ideally you shouldn't even reveal why you're calling (i.e., that you're a translator and that the reason you're looking for that person is because you did or would do a translation for them).


Thanks


Did the person tell you that that is the company and branch that he's working for? Or did you simply guess that, based on a web search?


From the research mentioned above.

They mentioned that they would have to escalate this issue officially to the relevant authority.

- Do you know who this relevant authority is?


No, I can only guess NAATI. I've heard nothing yet.


The question an arbitrator might ask is whether you had revealed too much during your search for information.

From what you described, I think that IF this is a genuine case of a disappearing client (and by that I mean: days/weeks of no response), I think it would have been okay for you to contact the other branch and tell them that you're looking for that person. It may even have been okay to tell them that you're a translator (because that information can be googled easily), but I'm not sure if it would have been okay to imply that you had done a translation. In fact, I would personally not mention translation at all -- all they need to know is that you need to contact that person for private purposes.


Yes, in hindsight, I should have been more careful. Thanks.




Does that mean that they paid or does that mean that you were asking them to pay?


I didn't get a chance to ask them anything. They called me and sent proof of payment right after their branch said they'd help.


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