Freelance service providers – Beware of unlimited liability clauses in agreements

 

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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

 

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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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Authoritative Comments

The 2017 Israeli Translators Association Conference has come and gone. It has left me a strong feeling of camaraderie, especially with my fellow legal translators.  There was a strange sense of a bar in the sense of a group of law people, not the watering spot. The lectures regarding legal translations, those of Emanuel Weisgras and Sue Leschen, became free, fascinating discussions of various issues that left, as they say in Hebrew, of a taste of "ode", the regret that there wasn't more time. Contrary to the old adage about lawyers according to which you can only have one lawyer change a light bulb because no room is big enough for the egos of two lawyers, legal translators disagree but are not 110% certain of their opinion.  All in all, they were productive and entertaining sessions.

Still, my highlights were the two plenary lectures by the invited writers, Yannets Levi and Amos. The first is the author of the Dod Arie (Uncle Leo in English) children stories. He spoke about the birth of his successful series of books. Like J.K. Rowling, he originally made up the tales as stories for his nieces and nephews. They were so successful that he wrote them down. He then discussed the various directions the translation took.  In particular, he mentioned that in Korea, the book was taken various seriously as a tool for installing Israeli creativity in Korean children. On a similar vein, Japanese children apparently require more visual images to follow the stories, possibly because of the complexity of and time required to learn Japanese. By the way, I also began as a translator, albeit unknowing, by translating impromptu the four first Harry Potter books into Hebrew to my young daughter.

The lecture by Amos Oz was also of note. He discussed his creative process, elaborating on his early morning walks and café observing as he tried to imagine the thoughts and history of all those around him, a bit like Sherlock Holmes. He then discussed several terms that he and his English translator struggled with. It emphasized that creativity is no less than important than language knowledge in translation.

In summary, the program was rich and satisfying. I return to work tired but filled with esteem for translators and writers alike. As Walter Konkrite used to say, "and that is way it is."