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Should you check a commercial translation before using it? 
08-09-2016

The liability of translation agencies and the importance of your general terms and conditions

Translation is a craft practised by highly qualified professionals, who know all about the far-reaching ramifications of a translation error. Imagine the potential consequences of a translation error in something like a set of operating instructions for a machine, a leaflet with patient information accompanying a drug therapy, or a commercial contract. The same could easily apply to a book. A poor translation could result in the book proving unsellable, unsold copies having to be returned to the publisher, and the book having to be retranslated and reprinted. Indeed, the financial cost of the whole operation could easily surpass the €1 million mark. In such a case, is it possible to recoup the loss from the translation agency that provided the translation?

Translation agency held liable for over €1 million, but saved by its T&Cs

As is so often the case, the question of who is liable for what depends on the circumstances. I mentioned in a previous article that very few court pronouncements have been made on the liability of translators or translation agencies. Recently, however, the district court in Overijssel decided on a case revolving around the question of whether a translation agency could be held liable for a financial loss of €1.1 million resulting from a ‘substandard’ translation it had supplied. The answer was: no, it was not liable in this particular instance. The translation agency successfully escaped liability by invoking its general terms and conditions (T&Cs).

At issue: a translation in eight languages of a book about the Netherlands

The claimant was a company called Beautiful Holland, which was founded last year with the specific aim of producing and marketing a book about the Netherlands and Dutch culture. Brimming with large, full-colour illustrations, it was designed for tourists and foreign businesspeople. For this reason, it was decided that it should be published in eight different languages. Beautiful Holland asked a translation agency that ‘guaranteed high-quality translations’ to produce the translations for it.

T&Cs: always make clear they apply

When agreeing on the terms of the order, the translation agency failed to state explicitly that it was to be subject to its general T&Cs. Although the court noted that the agency could hardly have used a smaller font size to refer to its T&Cs in its quotes, the court nevertheless took the view that, in doing so, the agency had implicitly made clear that the transaction was covered by its T&Cs. As a business client, the court explained that Beautiful Holland was duty-bound to be aware of such aspects.

One of the clauses in the agency’s T&Cs stated that, if an error was found in one of its translations, it was entitled to either improve or replace the offending translation within a reasonable space of time. This clause was to prove its salvation.

Translations of dubious quality: complaints from China and Japan

Soon after receiving the translations, Beautiful Holland informed the translation agency that it was not satisfied with their quality. It did not, however, make clear what exactly this meant. ‘Beautiful Holland’s PR machinery continued to operate at full steam’ during this period, and the bulk of the books were also printed.

Beautiful Holland subsequently corresponded with the translation agency on a number of occasions, but without identifying any specific translation problems. In the meantime, the company started selling the book but found itself the butt of complaints from customers, particularly about the Chinese, English and Japanese versions.

Beautiful Holland asked a number of external experts to examine the translations. These experts were critical not just of the English, Chinese and Japanese versions of the book, but also of the Italian, Spanish and Portuguese translations.

Armed with a fistful of statements by experts, Beautiful Holland proceeded formally to hold the translation agency liable for the loss it had incurred: it had had to withdraw the books from the market, and have them destroyed and retranslated.

The court’s judgment: the translation agency is not liable, despite failing to live up to its quality guarantee

Thanks to all the expert statements, Beautiful Holland was able to demonstrate that the translation agency had failed to deliver on its quality guarantee. The court did not address two key questions related to this point, though:

  1. .Was the translation agency actually capable of producing translations of the quality required for a book that was intended to act as a showpiece for the Netherlands, i.e. a book that needed to be pleasant to read, couched in idiomatic language and presenting culture-bound terms in a manner that foreign readers could clearly understand?
  2. Was this the criterion on which Beautiful Holland had selected the agency in question, or was it simply a matter of price?

It seems reasonable to assume that the translation agency was not capable of supplying the quality required by the client and that Beautiful Holland could have demonstrated that it had selected the agency precisely on account of its ability to deliver the requisite standard of quality. And yet the agency was deemed not to be liable for the consequences of the poor-quality translation.

The translation agency was not liable because it was not given an opportunity to remedy the errors

Under the T&Cs, the translation agency was entitled to improve or replace any poor-quality translations within a reasonable period of time. Although Beautiful Holland made clear that it was dissatisfied with the quality of the translations, it did not give the agency an opportunity to remedy its mistakes. On the contrary, the printing presses continued to roll.

The court made clear that the client should have given the translation agency an opportunity to fix the problem. Having failed to do so, it was itself liable for the resultant losses.

So if you order a translation from a translation agency, should you have it checked first before you use it?

It seems to me that the translation agency should have been liable for any losses incurred before the date on which Beautiful Holland realised that the quality of the translation was not adequate. It’s not really surprising that the agency was not liable for losses incurred after Beautiful Holland had complained about the translation, but nonetheless failed to stop the printing presses. Even if the T&Cs had not contained an ‘escape clause’, the court might well have come to the conclusion that the translation agency should have been given a chance to rectify the problems once they had come to light. As the judgment now stands, it appears to imply that all translation agency clients should first check any translation they receive from the agency and give the latter an opportunity to remedy any errors they may discover. But surely that’s an unreasonable expectation?

Here are a few tips, first for translation clients

If you feel that there is a problem with a translation you have ordered from a translator or a translation agency:

  • notify the translator or translation agency as soon as possible;
  • describe the exact nature of the problem;
  • give them an opportunity to improve the translation.

If you don’t give the translator or translation agency a chance to remedy the problem, you will probably be liable for any losses you incur. And if you believe there is a risk of a major loss resulting from a poor-quality translation, do not use the translation (insofar as this is possible) until it has been improved.

And some advice for translators and translation agencies

Use T&Cs that have been drafted by a lawyer. Make clear that every order you accept is subject to your T&Cs. Make sure that your clients can access your T&Cs by including a direct link to them on your website, by posting a PDF version on your website and/or by printing them on the reverse of any printed quote you send your clients.

Once you deliver your translation to your client, ask them whether they are satisfied with it. If not, offer to improve the translation. As is clear from this case, this is a good way of avoiding liability.

Finally, you may find a professional indemnity insurance an extremely useful tool, as it also covers any legal costs you may incur as a result of your being held liable by a client.

Liability’s a common risk for all professionals – and that means translators, too!

Have you suffered a loss as a result of a poor translation, and do you wish to recover the sum in question from the translator or translation agency? Or are you a translator or translation agency facing a liability claim? Feel free to get in touch with me – the sooner, the better! My familiarity with the legal aspects of the translation business places me in an ideal position to advise you on the best course of action.

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