Freelance service providers – Beware of unlimited liability clauses in agreements

 

[minefield warning*]

The attitude of many freelancers staring at a long agency agreements with small print is either to consider it a “mission impossible” to actually read and understand it or fatalistically hope that it never becomes relevant, whatever it is written there. Thus, feeling helpless, they sign it blindly. Unfortunately, most agency service agreements include a very problematic clause that should and can be negotiated. Specifically, numerous agencies try to impose unlimited liability on the service provider for any damage, direct or indirect, resulting from an error. To quote a recent agreement I received: “The supplier shall ensure that the goods or services it provides are free from defects and feature the warranted characteristics. The liability of the supplier in this respect is unlimited.” This potential for huge loss is real but the service provider can quickly and easily identify the terminology in the contract and have the agency insert reasonable liability language, eliminating the risk.

It is a mistake to dismiss such a risk as theoretical only. First, it is true that US and possibly European consumer law possibly does protect parties from outrageous terms in “adhesion contracts”, agreements such as those binding consumers on various Internet sites and purchase agreements. However, these laws often do not protect agreements between businesspeople, who are expected to read and understand what they sign. Furthermore, many freelancers, especially translators, mistakenly believe that the clause is on paper only and is never applied. I personally know of one incident of a translator that had to pay for reprinting of a run of books after the publisher belatedly discovered a critical error. As in all statistical incidents, there is no consolidation in being the 1 in the nth number. Unfortunately, liability insurance is generally not a practical option as In most countries, the premium is far too expensive to justify given the freelancer’s income and frequency of events. Thus, ignoring the risk can be ruinous.

To protect themselves, freelance service providers merely need to take the following steps. First, conduct a search (Control F) in the Word or PDF document for the words “indem” and “liab” The results should identify those clauses that contain “indemnify/indemnification and liable/liability and may pose some risk. In my opinion and I am not a lawyer, it is possible to ignore those terms when they refer to data protection or non-disclosure as the freelancer has full control of the matter. However, if the agency wants to impose unlimited liability on the service provider for defects, a matter of disputed definition and wide-ranging consequences, it is necessary to  negotiate and insist on a restricting clause. In translation, it is standard to limit liability to the amount of the invoice. While a few agencies, generally the larger ones, refuse to compromise, most bodies  I have negotiated with have had no issue with the proposed clarification.

This efficient manner of identifying and avoiding a serious potential problem requires little effort and prevents financial stress and disaster.  Regarding the sentences cited in the first paragraph, the agency in question agreed to add the following sentence: “The service provider's maximum liability per occurrence shall not exceed the total amount invoiced.” We are now off and running. Even with individual customers, that limitation is a part of my conditions. An additional benefit, at least for a legal translator, is that the customers know that we actually read contracts. Knowledge is power.

 

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Terrible technical translation – Obvious signs and simple preventative measures

 

["no|'*]

There are very few sounds as disconcerting as the groan of a translation reviewer when seeing a disastrous text that essentially needs to be rewritten. The feeling it expresses goes beyond the pain of the knowledge of the time that will require to correct the mess and captures the anguish of the knowledge that somehow neither the translator nor the agency (or company) is probably aware of how bad it is. What is even more exasperating is that the signs of incompetence are quite clear and the preventative measures require little effort. Specifically, in technical translation, if the translated text is literal, inconsistent and inaccurate, it is not professional. On the bright side, there are simple steps translators can take to avoid such results.

One clear sign of lack of confidence is extreme loyalty to the word order of the original text. This dedication to the original syntax is like using the handrail at an ice-skating rink, not a sign of great confidence. The reason is that no two languages have the exact same syntax, often differing in terms of word order, verb tense, noun/verb choices and/or article usage, to name a few elements. Therefore, if the source and translated text completely share the exact same word order, something is most probably awry. The easy check is to have a native speaker read the translation out loud. Even if the actual mistake is not clear, any discomfort on the reader’s face signals inappropriate syntax, i.e., “We don’t say it like that”. Translator and buyer – beware.

Maybe to compensate for the previous sin, some would-be technical translators love to show off their rich vocabulary and use a variety in words for the same concept as if they were writing a story. Unfortunately, technical translation, especially medical and legal, is about precision, not beauty. For example, in law, if there are two similar words for the same concept, only one is used unless the writer intends to create a contrast between two terms, which must be defined. Two (and more) are definitely a crowd in technical translation. The easiest ways to ensure uniformity are to use CAT (Computer Aided Translation) tools, which suggest previous word and sentence choices, and QA tools that can identify multiple translations for the same source sentence. The customer may challenge the term choice but at least the translator is consistent.

The most dangerous trait of poor technical translation is inaccuracy. At best, it creates confusion and a poor marketing image while at worse it leads to legal issues and even death. A quick glance by a knowledgeable person in the field can quickly identify when the content of a translated text is incorrect in terms of content. Professional translators recognize what they understand and don’t understand. If the latter is limited to a few phrases or paragraphs, it is possible to research through the Internet or consult experts in order to attain the understanding required to create a proper translation. While it may add time to the process, this knowledge can be useful in the future. On the other hand, if most of the text involves uneducated guesses, translators should inform the buyer as soon as possible that, after review, they realize that they are not capable of producing a proper translation. Of course, the buyer will not be happy but this admission is a far better option than submitting an unprofessional result. The best option is to avoid such situations but almost all translators have mistakenly taken on such assignments in the past and lived to regret it. Think before you accept.

There is a rule of 80/20, which states that  the first 80 percent of the result takes 20% of the effort while the last 20% of the result requires 80% of the effort. Focusing on the first element, translators can produce a decent technical translation by avoiding extreme loyalty to the source syntax, using a CAT or QA tool to maintain consistency and making sure they only translate texts whose material they understand. Such basic steps not only contribute to a flow of business but also improve the mental health of all those that have to read their translation.

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Do you also speak English? – Why English as a second language is generally better in certain countries

 

[women showing confusion*]

Several years, I attended a conference in Valencia, the third largest city in Spain, and needed to talk to a bank in regards to a credit card issue. I entered a local management branch and asked the question “Does anybody speak English or French?”. Of the more than 20 executives, college graduates I presume, only one said that she could speak a little French. The less said about the Spanish taxi driver who could not even read an address, the better. By contrast, almost all Israelis, from taxi driver to bank executives,  speak quite passable English, some of them almost fluently. This contrast leads to the question of why in certain countries most people know, as compared to study, a second language, English being the most common and most useful, while in others the second language is truly foreign. As I see it, admittedly based on intuition, the following four factors influence absorption of English and other second languages to one degree or another:

Resemblance – Learning a foreign language, especially for adults, is a daunting jump into the unknown. Clearly, if a person’s native tongue and the second language have the same alphabet, even with small variations, the latter feels already seems a bit familiar. If the two languages share some roots, e.g., French/English and German/Dutch, people find it significantly easier to study and remember vocabulary, a vital step in learning language. Yet, having a different alphabet or different roots do not in themselves make a language unapproachable but merely add an element of difficulty.

Government policy – Most national education systems include English as part of their curriculum. However, the starting age, number of hours, training of the teacher and quality of the materials vary significantly. Clearly, the ideal is to start teaching a foreign language as early as possible since small children enjoy superior language learning capabilities. Ideally, locally produced learning materials are better as the cultural references better reflect the experience of the learners. Some governments use their power to influence television programming, choosing to produce and broadcast English language learning programs for various ages. English road signing as a matter of policy also increases exposure to the language. In this manner, English becomes a second language, not a foreign language.

Exposure – Regular exposure to a second language creates natural opportunities to use it. While many countries still dub movies and TV programs, those ‘forced” to hear the original English, even with subtitles, improve their listening and reading comprehension to one degree or another. The Internet era has clearly elevated English to an essential language in navigating the Net and accessing information. Searching, whether for information or products, clearly involves some English as the machine translation of sites in many languages can be extremely confusing. Academics in almost all fields depend on English language sources, whether written or oral presentations, to stay up to date. Regardless of their origin, the language of communication of most tourists is English, especially in countries with exotic languages. Where English is prevalent and useful, people see the need to learn it.

Willingness – The subjective element has an important influence . Specifically, people in some countries, in particular those that had great empires or are geographically isolated, feel great pride in their heritage and assume that others should speak their language as a matter of respect. They view speaking a foreign language as unnecessary and, to a certain degree, degrading. Clearly, not every citizen shares this attitude but often a large percentage of population do feel this way. By contrast, native speakers of statistically irrelevant languages, such as Hebrew and Islandic, know that outside of their country (and a few cities abroad in the case of Hebrew) they must speak English. It even becomes a matter of pride and high style to insert English in their native languages. A look at the store signs in Israel shows how highly English is esteemed. People have to be open to using a foreign language to make it a true second language.

Looking at the spectrum of use of English throughout the world, we can see, on the one hand, countries where the English-speaking tourist has no problem managing with a sprinkling of the local language and large portion of English. On the other hand, there are places where tourists have to resort to sign language and pictures, such as in many parts of China and even a few countries in East Europe. The reasons for this variance are far from simple and involve government policy, the international reality and intrinsic attitudes. The result, among others, is that not all countries are created equal in tems of foreign language accessibility.

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Blended family: native, mother’s and adopted tongues

 

[love in many languages*]

Last week, I had a language awareness moment. I was making some phone calls to France to arrange details to attend a conference of the SFT, the French Translators Association, in August. As I finished my last conversation in French, I suddenly realized that it felt very natural to speak French. To explain, my native tongue is English, the language of the society in which I grew up in and the educational system that framed my communication. My mother’s native language is French, which we often spoke at home. I reinforced my French through formal studies in high school and a short stint in France as well as teaching credentials. However, for the last 34 years, I have resided and worked in Israel, functioning and working in Hebrew on a daily basis. I have rarely used French during that period. Consequently, I was surprised to notice that it felt more natural to speak French than Hebrew. French has remained more instinctive than Hebrew.

Clearly, a person’s native language remains dominant in the brain. It is the language of preferred speaking when one is tired and also of counting. In general, speaking a native language is a bit of a non-brainer in a certain sense of the word. However, it would seem logical that an adopted language used daily for an extended period would eventually become natural, especially as compared to a neglected childhood language, buried and rusty.

Alas, a few conversations were all that I needed to resurrect those brain connections and return French to the family fold. The words flowed instinctively, albeit not always accurately, even more than in my adopted language, regardless of how well I speak it. Apparently, blood is thicker than water, i.e., a person absorbs a language learned in one’s early years better than one learned as an adult. If you think about, there is no shame, to have a brain with a blended family. After all, there is enough love of languages for all types of children.

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