As a legal translator, you may have come across some delicate work with a tight deadline. After revising your work as carefully as possible, you deliver it. But… what if the work you have just sent is not 100% correct? Yes, what if you missed something? What if there is a mistake? And what if that translation mistake causes harm to the client? What will happen to you, the translator?
The bases for the translator’s accountability are laid down by civil liability law and/or contract law. By not complying with these laws, the translator is committing an offense, i.e. a mistake arising from the violation of a legal obligation provided for by law, which is the basis for criminal proceedings. The main aim of civil liability is to mitigate the harm caused by one person to another and to prevent the situation from being repeated.
If the translator and the client are connected by a direct contract, then the client can sue the translator based on the terms of that contract should the client suffer any harm or loss due to a translation error. If the person harmed is not a client and does not have a direct contract with the translator but even so is harmed by the translation error, that person can sue the translator based on the theory of civil liability law.
The basic rule of contract law states that, if the translator and the client enter into a binding translation contract and if the translator does not comply with that contract according to its terms and conditions, the client may demand compensation for any damages suffered due to the violation of the contract.
A translation contract does not necessarily have to be a contract written and signed by the translator and the client. A contract is entered into from the moment the translator and the client agree that the translator will translate a source text in exchange for compensation. Most translation contracts are entered into by e-mail and the commitments undertaken in that exchange of e-mails also become part of the contract (the commitment to deliver on a certain date, the payment terms, the use of glossaries, etc.).
But to what extent can a translation error be considered a violation of the contract? And if the translation error is a violation of the contract, can translators be held responsible for other damages that result from their mistakes?
Regarding civil liability law (mainly the concept of negligence) the accountability of the translator will also be based on the violation of an obligation that is not imposed in the contract but is imposed by law.
In the scenario outlined at the start, both the lawyer who is the translator’s client and that lawyer’s client would probably say that the translation error led to a wrong action or decision which, in turn, led to considerable loss. The facts that the plaintiff would have to prove in the case of negligence would be the following:
The main issues concerning a theory of negligence are related to points 2 and 3 described above. Did the translator really fail to perform his/her obligations? Did that failure, in fact, cause what the plaintiff alleges? These two issues are difficult to prove.
Fortunately (or unfortunately) for translators, translation contracts generally offer little guidance as to when a contractual obligation is broken. Most contracts contain nothing more than a price and a delivery date. If these translation contracts specifically quantified the number of errors that would be tolerated, the translator’s minimum obligation would be much easier to identify
The courts also offer no guidance as to the legal norms that apply to translations, and there are no precedents that the plaintiffs can use as examples for holding translators responsible. However, if one of these cases goes to trial it will very probably be based on industry standards as a benchmark for determining the translator’s obligations. Although there are standards both at international level (like ISO 12616, for instance) and at national level, their extension and purpose vary, and they generally raise more questions than provide answers. Can these standard norms be considered “best practices”, “preferential practices” or “minimum requirements? Are they widely known and accepted? In court, the plaintiff will have to establish which standards apply, and to prove that they were actually violated.
If, on the one hand, civil liability laws and industry standards do not provide much guidance in determining whether an error in a legal translation can be considered a violation of the contract or of the translator’s obligations, on the other hand translators may find it comforting to know that these same laws constitute a defence of their accountability.
As mentioned above, anyone who wants to sue a translator for damages resulting from bad translation will have to prove that the translator did not perform his/her duty. This task is not particularly easy, for there is no legal precedent in a case of this kind, nor is there consensus in the industry regarding the professional standards that help define the translator’s duty. All this increases the cost and difficulty of bringing legal proceedings.
Additionally, any plaintiff would have to face considerable challenges when trying to establish a causal connection between the translator’s mistake and the harm caused to the client, partly because the translation process itself is a collaborative process between the translator and the lawyer.
The ideal legal translator should be perfectly fluent in the source and target languages, have in-depth knowledge of the laws of the respective countries, recognising the differences between them and the complexity of legal writing, the vast amplitude of laws, their particular areas and the tight deadlines they have to deal with. A partnership between the translator and the lawyer, or rather a team of lawyers, is the only way to produce a truly competent legal translation.
Besides, the role of legal translation in lawyer-client communication conceals the connection between the mistakes of a legal translator and the damages suffered by a client. Lawyers are the ones who can end up being held responsible for damages, since they independently hire translators and delegate the work, while clients believe that their lawyers are closely supervising the work when this is not always the case. In fact, this is the sort of work with legal information, and information that is used as the basis for decision-making, which should be supervised with particular care by a lawyer. If lawyers do not carefully review the translation, they leave themselves open to being held liable for negligence.
It is to be expected that a lawyer who knows more about the case itself and about the circumstances in which the translation will be used, will review the translation (translators rarely know these circumstances). Therefore, when faced with an accusation of negligence, translators can defend themselves with this argument, thus placing the lawyers in a delicate situation: either they take on the (wilful) risk or they admit that they contributed to the problem by just trusting a translator and not reviewing the translation with particular care (culpable).
These legal defences do not in any way constitute an excuse for translators to be less than professional and meticulous with their translations at all times and under any circumstances; this starts by knowing what they are and are not able to translate and by establishing their limits. There are also numerous proactive steps that legal translators can take to protect themselves from liability. For example, they can establish quality control routines and define, from the start, exculpatory clauses and limitations of liability.