Legal Duties and Rights of a Translator

Translators are responsible for translating written and spoken material accurately and in a timely manner. Lexical, structural and cultural differences between two languages, however, can affect translation accuracy, which may raise a few concerns regarding the liabilities of a translator.

It is in the best interest of any translator to deliver quality work and to comply with legal requirements, so, first of all, let’s take a look at the basic obligations of a translator:

• Semantic accuracy: To translate means to fully understand the message in the source language and translate it accurately to the target language.
• Grammatical proficiency: To translate means to be grammatically proficient in both the source and the target language, and this includes using proper punctuation.
• Timely delivery: To translate means to have good time management skills.
• Quality: To translate means to deliver quality work and this includes good organization and presentation.    
• Customer Service: Being a translator includes communicating in a clear and polite way, being open to revisions and discussions about payments, deadlines and other issues.

Failing to comply with any of the above may lead to customer dissatisfaction, which may cause a client to want to file a lawsuit against you.

In order to avoid this type of situation, we cannot stress how important it is to have a contract in place before any work starts, even when it seems trivial. This will save you time and money.

Accuracy

Accuracy includes correct wording, style, tone and punctuation. Oftentimes, accuracy issues arise when a translator does not fully understand the original text or message, or tries to infer the meaning from context. It is the translator’s obligation to fully understand the message in the source language.

Whenever a translator has difficulty translating a certain word or a sentence, either because they don’t understand the original text or they have difficulty expressing the same message in the target language, they should refrain from practices that could lead to a potential mistranslation such as machine translation or unreliable resources.

Translators should only use machine translation if they are competent enough to fully understand the source text and are able to assess the accuracy of the output. In addition, correct punctuation plays a major role in delivering precise and accurate translation.

There are many things a translator can do to improve accuracy:

Best Practices for Ensuring Translation Accuracy

• Read through the document carefully and evaluate your translation skills before accepting the translation task.
• Contact your client immediately if you have any questions that cannot be remedied through standard practices.
• Use your common sense: gather all questions before contacting your client so as to avoid emailing or calling your client multiple times.
• Use powerful and reliable translation software such as Bureau Works.
• Contact other reliable translators – or a translator community such as ProZ – if you have questions regarding specific words or idioms.
• Have your translation proofread for grammar and translation mistakes by another professional.
• If it is a legal translation, follow these best practices.

Timely Delivery

Delivering translations in time is at the core of a translator’s duty. A translator will typically give an estimated time of delivery even when not expressly requested by the client. If a translator anticipates not being able to complete a translation within the agreed deadline, they should discuss the possibility of a deadline extension with their client.

If a translator fails to meet a deadline, the client might be entitled to a full refund. Legislation varies from country to country and, of course, force majeure cases will usually protect you.

If the service is an interpreting session, the interpreter should let the client know at the earliest of their convenience that they will not be able to carry out their duties, allowing for sufficient time for the client to find another professional.

Here are some tips for improving time management:

Best Practices for Time Management Optimization

• Read through the document carefully before accepting the translation task, and assess how much time you will need to complete the translation.
• Ask your client if they need extra services such as recreating images and graphics.
• If it is a website translation, check if the client wants the translation to be uploaded onto the website. This may involve specific knowledge of translation plugins, plugin conflicts, as well as understanding how domains, subdomains, subdirectories and multisite architecture works.  
• Avoid working on too many projects simultaneously, even if you have plenty of free time.
• Avoid storing your translations on local servers only. Use a cloud storage service to store copies of your translation, or, what’s even better, use a hybrid form of local server plus cloud storage service. In the case of software malfunction or technology failure, only a cloud service can safely guarantee a backup copy of your translation for you to resume your work.
• If you are working online, constantly check that you have not lost your internet connection. Otherwise, if your computer shuts down unexpectedly, you may lose part of – or even your entire – translation project.
• If it is an interpreting job: check dates and location, and plan your itinerary in advance. Depending on the duration of the session, more than one translator may be needed. It is always a good idea to have contact information for other interpreters in the area.
• If the job involves interpreting orations, request a copy of those in advance.

Civil and Criminal Liabilities

A translator can be held financially responsible if a mistranslation causes harm to someone. They can also be criminally liable if they act negligently or maliciously. In such cases, consequences may include fines and even imprisonment. However, such occurrences are very rare.

Corporations and organizations can be severely harmed by mistranslations, especially when they happen in marketing campaigns or contracts. In China, in 2011, the Shanghai Maritime Court reported 1,981 cases about maritime and commercial affairs, and, according to Ying Shinglong, the then president of the Court, even though such cases account for less than 5% of all cases, the translation mistakes caused significant losses.

Disputes Over Contract Translations

In the case of disputes over contract translations, typically the original contract – and not its translation – will be considered by the court. However, translation clauses in a contract may change that. Ideally, a contract translation should be revised by an international lawyer.

In Europe, the International Institute for the Unification of Private Law (UNIDROIT) has drawn up Principles of International Commercial Contracts, and any organization conducting international business can choose that their contracts be governed by these principles. For example, ARTICLE 4.7 (Linguistic discrepancies) states that “Where a contract is drawn up in two or more language versions which are equally authoritative there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up.”

Promissory Estoppel

What if you conducted a translation project for a business or an individual, but there were no contracts involved? Many people tend to think that an oral or an informal agreement is not legally binding. Although this is true in most cases, a promissory estoppel can change that.

A promissory estoppel is the legal principle that can render a promise enforceable by law even in the absence of a contract or formal agreement. The requirements for a promissory estoppel vary from country to country. If you worked on a translation project based on an informal promise of payment, and the client is refusing to pay you, you may still be able to stop the promisor from arguing that the absence of a contract implies that their promise can’t be legally enforced.

NDAs and Confidentiality

NDA stands for Non-Disclosure Agreement, which is basically a promise that you will not disclose any information contained in the document that you are about to translate.

NDAs are quite common in the translation industry, and they are typically used when a client wants to preserve confidential information such as trade secrets, proprietary processes and other sensitive information.

Even when not requested to sign an NDA, a translator should not disclose any information present in the document, or share the document with a third party. If you, for some reason, need to outsource your translation or part of it, you should ask permission from the client first.

Online Translation Services Privacy Breaches

Another overlooked aspect of confidentiality is how information is stored and shared when using online translation services such as Google Translate and Translate.com.

In 2017, employees of Norwegian oil company Statoil (now Equinor) had discovered that text that had been typed in on Translate.com could be found by any user conducting a search on Google. Later, it was discovered that sensitive information such as private emails and termination letters is easily accessible through Translate.com.

Translate.com states that they cannot guarantee that any information entered into their website will not become public.

Whenever personal or confidential information is involved, avoid using translators such as Google Translate or Translate.com.

Resolving Conflicts

There are many situations that could lead to conflicts between a translator and a client. To avoid becoming a victim of wrongdoing, always keep a copy of your translations and all  communication between you and your client. In case your client files a lawsuit against you, you will have proof of everything that was agreed upon.

Things you can do to avoid conflicts with your clients:

• If a client finds that a translation does not meet the quality they expected and refuses to pay for the service, offer to make revisions to the document, and have someone else proofread your document for grammar and translation mistakes.

• If you’ve failed to deliver a translation in time, check with your client if a deadline extension is possible. Offering a discount to your client can be a nice way to compensate them for the delay.

• If you foresee that you will not be able to meet a deadline, check if sharing the translation task with other translators (outsourcing) is a possibility. Depending on the situation, it may be wiser to terminate your contract altogether.

Internet Scams

Scams are popular all over the internet and they are not uncommon in the translation industry. It may be very difficult to locate a scammer and retrieve any money you may have lost. Some scams do not even include financial transactions: a common type of scam involves hiring a translator to work on a translation project, and when it’s time for payment, the client just disappears.

Most scammers use fake identities and, very often, impersonate real translation company agents. Because of that, it is really difficult to even attempt to file a lawsuit against them.

Please check the tips below to avoid falling victim to internet scams:

Better Practices for Avoiding Falling for Scams

• All that glitter is not gold. Be careful with clients offering exceptional rates for small projects, or offering large translation projects without an advance payment.
• Companies adopting common e-mail address formats such as “@gmail.com” or “@yahoo.com” might be a sign of a scam. Most companies prefer a “@company.com” format.
• Be careful with companies that reach you directly, especially if you have never worked with them before.
• Always request a percentage such as 30% or 50% of the payment in advance.
• When working with a client for the first time, establish milestones (words, pages or chapters) and request payment after each milestone is completed.
• Be careful with freelance work platforms as they concentrate a high number of scammers.
• Never disburse any amount in order to work or to receive a payment. A common type of scam involves having the translator pay a certain amount either to have access to a translation platform or to receive their payment for the project.
• Define how payment will be calculated beforehand (if by the word, by the page or other method). If by the page, agree on what a standard page is.
• Last, but not least, always have a contract in place. Contact a lawyer that knows the translation industry well, and always check that the other party is real and reachable and that their identity is verifiable.

The BlueBoardTM

ProZ website maintains The BlueBoardTM, a database of translation companies along with feedback given by clients. It is a good resource to find out the companies that are in good standing, and which companies you should steer clear from.

Fuzzy Match Profiles

Translation agencies typically calculate payments according to the number of source words and the percentage of fuzzy matches found in the translation memory database. Fuzzy matches speed up the translation process. Translation companies fix their rates according to a fuzzy match percentage scheme.

It is advisable that you read the company’s policies – or the contract sent to you – carefully to understand how the company calculates their pricing beforehand. This way you will avoid surprises later.

Freelance Job Platforms

When working through a freelance job platform, you are bound to the platform’s policies, including fees and other limitations.

Freelance work platforms typically charge a fee for each project, usually between 5% and 20%, in addition to an extra percentage from the client. If needed, adjust your rates accordingly.

Most freelance work websites will not allow you to:

• Conduct business outside of their platform, or, at least, without paying a fee beforehand.
• Withdraw money before a certain number of days or weeks after the project has been completed.

Payment withdrawal methods usually include PayPal, Payoneer and wire transfer (direct bank transfer). If dealing with international currencies, please be aware that exchange rates and fees apply.

Outsourcing

A common practice among busy translators involves outsourcing part of, or even the entire translation project. Things you have to be careful when outsourcing a translation project:

• Do not have a translation project or part of a translation project outsourced without permission from your client.
• Communicate to your client beforehand that part of the work will need to be outsourced and explain the reason why you need to do it.
• Do not have your translation project outsourced by a translator that you do not know or trust.
• If there is a contract involved, check that the clauses allow such practice.You might need to have to contact your client and have your contract amended.
• Whenever outsourcing a translation project, establish clear payment clauses, or else, if for some reason the client doesn’t pay you, you will probably be responsible for paying the translator you hired out of your own pocket.
• If you are working through a freelance platform, check their policies to see if they accept outsourcing.

Literary Translators’ Rights

Legislation in most countries view literary translations as original artistic works. This means that in these countries a translator enjoys the same legal rights as a writer.

According to Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, signed by 164 nations, “translations (...) of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work”.

When quoting from a translation, both the author and the translator must be named. If you need to reproduce larger fragments of the translation, you need to request permission from the author.

Sworn vs. Certified vs. Notarized Translation

These are terms that often cause confusion among individuals that need an official translation.

A notarized translation is actually a misnomer. A notary public can only acknowledge the identity and signature of a person. A notary public can witness and notarize, for example, the signature of a certification statement.

A sworn translation is a translation completed by a public or sword translator, an individual appointed by the authority of certain countries to provide official translations. Sworn translators get this name because they are under oath. The U.S., as well as many countries in the world, do not appoint sworn translators. In Spanish-speaking countries, a sworn or public translator is commonly known as a “traductor jurado”, and in Brazil as a “tradutor juramentado”.

In the U.S., there is no such thing as a certified translator, either. Basically anyone can certify a translation.

A certified translation, in the U.S., is a translation accompanied of a certification statement that includes, according to the American Translators Association:

• A statement of the translator’s qualifications.
• A statement attesting to the completeness and accuracy of the translation.
• Identification of the translated document and language.
• The translator's name, signature, and date.

A certified translation may be required for legal paperwork, such as for presentation in court hearings and trials.

Court Interpreting

Court interpreters provide real-time interpreting during Court proceedings. They are responsible for translating words said by judges, attorneys, witnesses, and others. It is one of the most difficult areas of translation, and one that requires the highest level of accuracy.

Legislation varies from country to country, or from state to state, but court interpreters are typically registered with, or appointed by the administrative office of a court. Before each proceeding, a court interpreter will typically take an oath, solemnly swearing that they will make a true, complete, accurate and impartial interpretation of all communication during the court proceeding to the best of their abilities.

Perjury

Lying under oath constitutes perjury. In the U.S and in most countries, perjury, or lying to authorities, may result in fines and imprisonment.

Being intentionally partial, not making a true interpretation of what is being said in order to protect one of the parties, and forging qualifications are highly unethical practices that jeopardize the judicial system.

A few cases of perjury by interpreters in court proceedings have been reported during the last few years.

According to a 2017 report, a court interpreter in Budapest, Hungary, was responsible for tampering with the testimony of defendants that had been put in trial for instigating the “Battle of Röszke”. The court later found discrepancies between the official testimony and the translation, and had to suspend the prison sentence.

More recently, in 2022, in Brazil, a successful story of a Haitian man that had been in prison for supposedly having killed his wife, was found to be innocent after a court interpreter was called to appear at the trial. The interpreter, who translated from Haitian Creole to Brazilian Portuguese, was key in translating the defendant’s version of the facts to the judge. Other interpreters had been hired earlier, but they spoke French and not Haitian Creole (which is a creole derived from French), and communication was not effective.

Conclusion

Complying with legal obligations is essential if you want to avoid conflicts and potential legal liabilities, especially if you are a translator who wants to maintain client satisfaction and retention.  

By employing the best practices described above, you are more likely to avoid falling victim to scams, and are guaranteed to save your - and your client’s – money at the end of the day.

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