As mentioned in an earlier entry, the translator has an obligation to be responsible in their profession and to their clients. It is a dual responsibility that takes place both before and during the development of their work (ex ante responsibility) and after its completion, which we call ex post responsibility. It is the latter that remains unknown to many, especially for those who are just starting out professionally in this field. Given that ignorantia juris non excusat, in our post today we will shed some light on this topic.
EX POST RESPONSIBILITY
What is it?
On the contrary to what may commonly be thought, the responsibility of the translator does not stop the moment the project is delivered. Why? Well, because occasionally the translator’s performance or the final product may not correspond with what has been contractually agreed. Also, because a translation, even after a thorough revision, may contain errors and may cause financial damage to the client, who must be compensated. As such, the translator is always linked to their projects and must accept the consequences of malpractice/ unsatisfactory work.
What types of liability can incur?
Firstly, in order to determine the different responsibilities that a translator has to take on, an important distinction must be made: translator responsibilities are not the same for a normal translation as for a sworn translation. This is due to the very purpose of sworn translations, which are carried out in order to have full legal effect in the target institution in which they are presented and, therefore, in which any minimal error may hold serious consequences.
Civil liability
Art. 1089 of the Spanish Civil Code states that liability “is based in law, contracts and quasi-contracts, and comes as a result of from wrongful acts and omissions or any kind of fault or negligence”.
According to this article, the translator has an obligation which is based on the notion that they provide an adequate service for a specific purpose and in accordance with certain agreements or contractual clauses. When this obligation is not fulfilled, civil liability enters into the conversation.[1]
The literal wording of art. 1902 of the Spanish CC states that “whoever by action or omission causes damage to another, through fault or negligence, is obliged to repair the damage caused”.
Thus, the civil liability of the translator arises and works according to the production of concrete events, which must occur in a cumulative manner:
- Failure to comply with the obligations agreed on between the parties which had been specified in the clauses and with the provisions of the contract (breach of contract) or failure through fault or negligence in the delivery of the service (malpractice or errors).
- The production of damage to the client or to a third party.
- The existence of a causal link between the service provided and the damage produced.
In art. 110 et seq. of the Spanish Criminal Code, we see the extent of civil liability, which is established as:
1- Restitution: the delivery in natura of goods.
2- Damage reparation: consists of an obligation to give, do or not do.
3- Compensation of material and moral damages: consists of monetary compensation that covers the damages incurred, as well as the legally accrued interest.
Civil liability, therefore, is a civil obligation that looks for the restoration of the injured party’s assets in the event that damage may have been caused. However, it is worth bearing in mind that the obligation may be qualified as conditional since compensation by the person responsible is conditioned by the actual occurrence of damage.
Criminal liability
The most important thing with regard to criminal liability is not to panic. Our translation, no matter how bad it may be, will not result in us being put behind bars.
Criminal liability is strictly limited to sworn translators according to their actions before the State Justice Administration.
Sworn translation produces a legal effect. The translator certifies that the translation renders the integrity and faithfulness of the original text. An error made in these translations can seriously and negatively affect the delicate and important matters in the texts. Whether they be assets, academic/ professional life or marital status, any error may cause substantial damage which must be repaired accordingly and may even lead to being considered a crime.
In article 459[2] of the Spanish Criminal Code, the crime is considered a false testimony by experts and interpreters which is punishable by imprisonment or fine, and disqualification. Yet, my aim when writing this article is for it to be as nuanced and correctly explained as possible.
Any conduct classified as a criminal offence, and therefore would result in the criminal liability of translators and interpreters, is understood as knowingly misrepresenting the truth in translation or interpretation or altering it in such a way as to conceal information or reveal inaccuracies. However, conduct may also be identified as an error and therefore would be subject to civil liability insofar as it has caused damage to third parties. Yet, for it to be actually considered a criminal behaviour the translator/ interpreter would need to be shown as to have been carrying out their work in a fraudulent manner.
The following two elements must, therefore, be present for there to be criminal liability of sworn translator:
- Objectivity (error, inaccuracy, reservation, concealment)
- Subjectivity (damage[3])
Who is responsible?
The next issue for us to tackle is centred around who has the active responsibility for having caused the damage to a client and, therefore, who is also legally obliged to compensate them.
When it comes to sworn translations, it is very simple as these translations must be signed and stamped by the legally authorised professional who translates them and who will always be responsible for their content.
However, in any other case, deciding with whom responsibility lays becomes more complicated since there are usually several different agents that intervene in the process. It is important to know if the contract specifies an individual or collective obligation, and within the latter, if there will be several[4] or joint liability[5].
When distinguishing between translator and proofreader, the specific method used to revise must be taken into account. In this regard, we recognise there are two techniques:
- Without consultation: Once the translation has been received, the reviser detaches themself from the translator and their relationship, undertaking the revision process independently and following their own criteria and understanding.
- With consultation: The translator-reviser relationship remains in full force during the translation and revision stage. Any changes made are consulted with the translator and the final version of the translation is a product born from the consensus of both professionals.
When the revision is done without consulting the translator about changes made, it is clear that the responsibility remains solely with the reviser since the product (service) has been modified and would be considered as another independent service, for which the consent of the original translator has not been given. However, in cases where the review is done with consultation, both parties would be responsible as the final product to be delivered to the customer belongs equally to the professionals, with each acting as a co-author and each bearing shared responsibility for its content.
The following case is between translators and translation agencies.
In the case of wage-earning translators working as employees for translation companies, civil liability for errors or omissions in their performance is covered by the translation agency.
Where the translator works as a freelance, things change. In these situations, there is a line of responsibility, in which all agents come into play. The freelance translator, not being the one who finally invoices the client for their services, could understand that this exempts them from any hypothetical civil responsibility. However, this isn’t a guarantee. Logically speaking, the client who has suffered damage as a result of the service provider will be directed to challenge the person who has invoiced them for the service (direct civil liability). However, if the error has been made by the freelancer, despite the company being responsible to the client, the client will also have the right to assign[6] the mistake to the freelancer, who will be responsible for the subsidiary civil liability. This is because, even though the freelancer may not be directly responsible towards the client, they are responsible for answering to the translation company.
How can we manage such eventualities?
Whether you are a sworn translator, translation company or freelance professional, one thing is clear: it is recommended to always have a professional liability insurance policy in force, which covers you against any possible damages caused to a client or third party and which covers the translation/interpretation service provided. But, it doesn’t stop there. Agencies and other companies dedicated to the world of translation that outsource their services using freelance translators must also ensure that they work with professionals who have said insurance and that, therefore, liability for any damage caused by their services is adequately covered.
When it comes to civil liability insurance, translators, revisers, and interpreters are advised to go to specialised entities to benefit from an adequate and personalised coverage plan for the services that they actually offer.
Errare humanum est…
Translation is a human activity, and even the most reputable professionals with many years of experience behind them can make mistakes.
This situation is often remediated through the presence of the reviewer; the second and essential filter of any translation, which acts as a way of eradicating all possible imperfections and slips.
But it is no less true that revision is also a human activity, and that a revised translation may also contain inaccuracies.
…Perseverare autem diabolicum
Obviously what must not happen is that a translator neglects the quality of their translation due to the mere fact that it will be subsequently revised, as this would be acting irresponsibly.
In the same way, the reviser who may have made a mistake must ensure that there is no repeat of said mistake in the future. This is because their work is as important as that of the translator themself and is subsequently governed by the same rules of ex ante liability and, more than anything, is the final line of defence before delivery to the client.
In the event of a defect in the final product or a breach of contract, the customer or third party is liable to claim for damages and is entitled to be compensated in full by the person who caused the damage and is responsible for it. For this reason, it is recommended that all professionals in the field of translation take out civil responsibility insurance with specialised entities that offer adequate coverage for the services provided, so that the client may be adequately compensated and the translator’s assets do not suffer nor does their professionalism.
[1] To clarify, civil liability is divided into contractual civil liability (the refusal to honour the commitments outlined in a contract) and non-contractual civil liability (where damage occurs regardless of the existence of a pre-existing legal relationship between the parties).
[2] Art. 459.3: “The penalties set forth in the preceding Articles shall be imposed in the upper half on experts or interpreters who maliciously misconstrue the truth in their opinion or translation, who shall also be punished with the penalty of special barring from profession or trade, public employment and office, for a term from six to twelve years”.
[3] Awareness and motivation to go through with committing anti-legal actions/omissions.
[4] Several liability: Each of several subjects responsible are responsible for their own part, independently of the others.
[5] Joint liability: The involvement of several responsible agents, each held responsible, indistinctly, for the totality of the damage.
[6] Action for recovery: Action available to the payer to address whoever must reimburse them.
