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Sunday, February 28, 2021

Courting disaster – Why poor quality and use of machine translation are serious legal issues

 

[Gavel*]

A post in JurTrans shared an article by John Shea entitled A cautionary tale about machine translation: a recent Polish court ruling. As a longtime professional translator, I was pleased to see a legal bottom being laid in the rather deep hole of cheap translations, in both meanings of the word cheap. The case itself is rather extreme and involves a single language service provider (LSP), but is relevant to all parties in the translation chain: translators, agencies and end customers. The bottom line is that there is a financial price for ignoring quality to achieve a low price.

The incident, which occurred in 2013, involves a company that ordered the translation of a technical booklet (IT) from Polish to English from an agency, which contracted a supposedly professional translator to carry out the project. Interestingly enough, the company itself approved the specific translator after viewing a sample of his writing. The individual had excellent high school English and was studying IT in college but had no translation experience nor was an expert it in the field. He produced a translation that, by his own admission, besides being delivered late, was 92% machine translated using Google Translate with insufficient post machine translation editing with the remaining 8% MT not receiving any editing at all. The company did not find the result satisfactory and requested and received review and amendment but ultimately was forced  to pay a real professional translator to do the job properly. The agency, rather full of chutzpah (gall), then demanded payment from the company for the job not so well done. The Polish court rejected its request and required it to pay legal fees.

The court discussed several issues but I would like to mention three aspects relevant to all in the translation business. First, while the term “professional translator” may lack a single coherent definition, it can be defined, albeit by elimination, and is of legal importance. With the exception of a few countries, translators are not licensed by any authority. A few professional associations, notably the American Translators Association, certify translators using tests or other objective criteria but technically speaking, anybody can hang a shingle claiming that they are professional translators. In practice, most translators have degrees in a language or a professional area and significant experience in translation and/or a technical field. In other words, they have knowledge of how to transmit specific information accurately from one language to another. This skill is not shared by the vast majority of high school or even college students, no matter how intelligent, hard working or well-read they may be as the knowledge and skill required to produce a proper translation takes many years to acquire. People, even long-term translators, that are unable to properly express the content of specific source document into target documents may be considered unprofessional in the specific circumstances. Thus, any false representation as such in regards to a specific document may be a breach of contract with its attendant consequences.

On a related issue, the relative cost of a translation does not cancel the implied warranty of merchantability. In simple terms, even if the payment is very low, the translator and agency are responsible for producing a usable product. There may be an emotional attraction to the expression “you get what you pay for” but legally and practically it does not hold up. If employees working for minimum wage (or less even) fail to do their job properly, they are fired. Likewise, regardless of the bottom barrel rates being paid by some agencies, a translator that has accepted them must provide at minimum an adequate product or risk truly working for nothing or worse. On a more serious level, as the rates offered by the mega LSPs keep on declining, they may find themselves in the situation faced by the agency in this case. The court specifically stated the agency has the legal duty to supervise the quality of a translation to ensure its usefulness. Both translators and agencies need to keep this requirement to produce a useful product in mind.

Finally, according to the court ruling, use of public machine translation sites can be a breach of the confidentiality condition of a contract. The issue here is not the quality of machine translation, which has radically improved in the 9 years since the decision. However, the mere act of a translator placing text in a public machine translation service such as but not limited to Google Translate has the effect of putting the content in the public domain, a breach of contract in many cases. Even more so today, it is very tempting to insert problematic section into machine translation for reasons of amusement, curiosity or need. According to the court decision, the translator must be aware of the legal ramifications especially if identifying data has not been removed. Clearly, for general expressions, public online help of all kinds is common and acceptable. The issues arise when exact specifications are entered. Ignorance of the law is not a defense. Translators must think before they insert.

I have presented a brief summary of the original longer article by John O’Shea, a bit like concentrated broth. As in all matters legal and medical, for a complete picture, it is always advisable to read the whole article. In my understanding from both the article and my legal studies, translators and LSPs need to fully understand the express and implied warranties they provide to the customers and comply with them, including in regards to professional status, translation quality and confidentiality. A word to the wise is sufficient.


*The blind need captions to full access your content. 

Picture credit: Image by <a href="https://pixabay.com/users/artsybeekids-392631/?utm_source=link-attribution&amp;utm_medium=referral&amp;utm_campaign=image&amp;utm_content=5660494">Venita Oberholster</a> from <a href="https://pixabay.com/?utm_source=link-attribution&amp;utm_medium=referral&amp;utm_campaign=image&amp;utm_content=5660494">Pixabay</a>

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