THE PRECEDENT-SETTING RULING OF THE POLISH COURT IN A CASE ON THE USE OF MACHINE TRANSLATION IN THE PROCESS OF PROFESSIONAL TRANSLATION AND QUALITY SUPERVISION OVER SUCH PROCESS EXERCISED BY A TRANSLATION COMPANY

The use of ‘free’ applications and services provided by global technology giants, known collectively as GAFAM or BIG TECH, for the purpose of professional activities invariably spark many controversies, disputes, and doubts. On the one hand, we all understand that, in fact, there are no free services or goods. When we are offered any type of ‘free’ and ‘gratuitous’ products, a question should be asked: ‘With what have I paid for this, if not with money? If somebody else has paid, why is that and what will they want from me?’.

It should be noted that these observations concern business entities, as we may encounter real disinterestedness and gratuitousness, for instance, in the case of philanthropy or charity.

If, however, we do not belong to a group of people who are actually in need, but we use services offered by third parties for gainful employment or business activity purposes, we should seriously ask ourselves where the catch is. Because there always is a catch… Unfortunately, for some mysterious reasons, many professionals are still in denial when it comes to the acknowledgement of this simple truth. The same happens to translators using the Google Translate service for the purpose of providing specialised translation service.

Usually, the currency we pay for ‘free-of-charge’ solutions and applications is our privacy and data on our shopping behaviours and preferences. If we accept this deal in our private life, this is basically our own choice. However, if we use such solutions and applications as part of our professional activity, these are data, content, and intellectual property rights owned by our clients and third parties that become the currency. We are not entitled to make such choices on their behalf and this type of conduct should be regarded as falling into the category of ‘unlawful act’ and ‘breach of contract’.

This issue has proved to become one of key aspects examined by the District Court for Poznań-Stare Miasto in Poznań, 12th Economic Division, in Case No. XII GC 669/17. The proceedings led to the delivery, on 13 August 2020, of a precedent-setting ruling (with the statement of reasons available HERE), which – according to my best knowledge supported by research done in commercial legal information databases and the common court case-law database held by the Polish Ministry of Justice – is the first Polish judgment referring to the use of free-of-charge machine translation tools in the context of confidentiality obligation and intellectual property rights, proper organisation of translation process, the liability of a translation company for quality supervision of a translator’s work, as well as lack of grounds to rely on a low price to justify the fact of falling short of quality requirements. The ruling also attempted to define the notion of a ‘professional translator’.

This article will discuss the most important theses included in the statement of reasons. As a preliminary remark, however, it is worth recapitulating the factual circumstances of the case to take a bigger picture.

The proceedings were initiated by a translation company (hereinafter referred to as the ‘TC’ or the ‘claimant’) which brought legal action against its client to seek the payment of remuneration for the translation of a book from Polish into English. The translation service at issue was provided in 2013. The client refused to pay and challenged the quality of the translation of its book, being a specialised handbook on the C programming of microcontrollers, provided by the TC. The translation was also very delayed. In spite of a complaint submitted and several attempts to correct the translation, the quality of the final output, according to the client, was so low (‘tragic’) that the client decided to withdraw from the agreement and ordered the translation from another entity. Against this background, a dispute arose regarding the payment of remuneration to the TC.

It should be noted that the client of the TC had a say in choosing a translator to translate the book as several translation samples prepared by different translators were presented to the client and the client chose the translation that satisfied its expectations to the largest extent. The TC assigned the translation of the book to the author of this version. The translator in question was a student of the 5th year of a Computer Science university programme and a laureate of the national competition in English language for high school students.

During the hearing, the translator stated that he had done 92% of the translation with the use of the Google Translate tool and had corrected this translation afterwards. The remaining 8% were translated with the translator tool without any verification of the output. One of the reasons for using the Google Translate tool was a delay in translating the text.

The TC and the client entered into an agreement on the translation in so-called STANDARD option, which included a reservation that the translation did not need to comply with PN-EN 15038:2006 standard (a predecessor of ISO 17100:2015), but the service would be performed by a professional translator and edited by a native speaker possessing specialised knowledge in the field of the translated text. The translation output was supposed to be fit for professional use.

An expert witness was called. The expert witness stated that the service had been performed inconsistently with the agreement entered into and that the rules of art had been violated. The translation assessed by the expert witness included numerous linguistic errors, with some parts left untranslated, while the register of the text was far from the register expected in the case of any text intended for publication.

Having heard the case, the District Court for Poznań-Stare Miasto delivered a ruling in which it dismissed the claim and ordered the claimant to pay the cost of proceedings. The section below presents the main findings and arguments presented by the Court in the statement of reasons as well as my commentary.

Principal theses of the ruling:

  • The Court decided that the translation provided by the TC, being the claimant party, was defective to such an extent that it could not be deemed ‘fit for professional use’, contrary to what had been promised by the scope of the ‘standard’ service.
  • The translation was entrusted to a person without relevant qualifications, professional skills and experience.
  • Editing work was incomplete and negligent.
  • Additionally, the Google Translate tool was used, which constitutes a gross violation of the rules of art and contractual provisions, while the fact that the use of the tool was allowed is, at least, a flagrant example illustrating the lack of supervision of the translation process and lack of applying any quality control procedures. The use of the Google Translate tool leads to violating confidentiality obligation and intellectual property rights to the source text owned by the client or third parties.
  • The fact of leaving, in the edited text, some untranslated words, obvious linguistic and spelling errors, as well as the presence of excerpts that are entirely incomprehensible, is equivalent to the occurrence of critical errors that make it impossible to use the translation for professional purposes.
  • ‘Comprehensibility’ of the text is a minimum criterion in the case of ‘budget’ translations offered for informative (indicative) and client’s internal purposes. In the case of translations that are supposed to be used for professional purposes, the very fact that the text is ‘comprehensible’, while at the same time being unreadable, incomplete and abundant in linguistic defects, do not justify considering the translation as performed properly. The translation output in the ‘standard’ option, even after taking into account all reservations made by the TC (the claimant), should be still fit for professional use, and this quality criterion has not been met by the text in question.
  • The TC cannot rely on the contractual limitation of liability for improper performance of the agreement as the high degree of defectiveness makes the translation unfit for its intended purpose, and this, in turn, means that what we face here is not improper performance, but failure to perform the agreement (non-performance of the agreement).
  • The Court also noted that it was the claimant party itself that had quoted the price for the translation. Therefore, the claim that the price for the service justified the lower quality of the translation is groundless. The TC voluntarily agreed to provide a ‘standard’ translation service and set the remuneration itself, and therefore, it should perform the agreement in accordance with its provisions.
  • The Court found that the work provided by the TC, being the claimant party, had undoubtedly included material defects, i.e. defects that prevented its intended use or constituted an express breach of the agreement. The translation provided by the TC was useless for the defendant. This uselessness is further confirmed by the fact that the defendant was forced to re-order the translation from a third party, which did the work from scratch.
  • As a result of establishing that the work provided by the TC included material defects, the TC’s claim for payment was considered unenforceable on the ground that the agreement had not been performed, and therefore, the claim was dismissed.

Contractual limitation of the translation company’s liability for improper performance of a translation service

An extremely interesting aspect of the case was the Court’s examination of whether the contractual limitation of the TC’s liability is effective in the context of the material defectiveness of the work. The Court emphasised that, pursuant to their terms of service, the TC bears no liability for improper performance of the translation service if the client orders the translation for publication or distribution purposes within ‘standard’ and ‘econo’ options. At the same time, the Court held that the limitation of liability covered exclusively the cases of improper performance of the agreement. Given the gravity of the breach of obligations on the part of the claimant in this case, its conduct should be seen not as an improper performance but rather as non-performance of the agreement. The work provided by the claimant included material defects and, therefore, was not delivered by the TC in line with its obligations. The client refused to accept the work from the TC, which it was entitled to do. Therefore, the TC did not perform the agreement improperly but failed to perform the agreement (non‑performance). As a result, the limitation of the TC’s liability provided for in the terms of service would not apply.

Even if we assume that the claimant performed its obligation, but in an improper manner, it should be considered that such limitation of its liability would be unacceptable under Article 473(2) of the Polish Civil Code. The provision states that a stipulation that a debtor will not be liable for damage which the debtor may cause to a creditor intentionally is invalid. The intention, in turn, occurs where a debtor, contrary to an obligation imposed on it, acts or fails to act with the intention to cause damage to a creditor, and therefore it wants such damage to occur or accepts it when it anticipates that it may occur. Having regard to the scale of the breach of obligations on the part of the TC, the professional nature of their activity, the claimant’s knowledge on the subject matter of the agreement and its purpose, as well as the information provided to the client before the agreement was entered into, the Court decided that the TC had anticipated the possibility of causing damage to the client and it had accepted it. The correspondence between the parties clearly showed that the claimant was aware that it was the client’s intention to publish the translated book. The employees of the TC assured the client that the translation in the ‘standard’ option would be of high quality. For these reasons, the limitation of liability provided for in the terms of service was declared invalid by the Court for the purpose of this case.

In my opinion, a conclusion may be drawn from the above that making false declarations, at the stage of quoting, on the professionalism of the persons involved in the translation process and high quality of the translation output in the context of the lack of proper supervision of the translation process by the TC should be regarded as intentionally causing damage to the client.

 

Violation of the rules of the art of translation and the concept of a ‘professional translator’

Even though the profession of a translator (who is not a certified/sworn translator) has not been regulated by Polish law-makers, this does not mean, however, that each person who does a translation in exchange for money may be called a professional translator. The fact that there is no legal definition does not open the way to unrestricted discretion in construing a given concept.

In the case in question, the Court held that the assignment had been entrusted to a person who had not been a professional translator with adequate language qualifications or basic knowledge of using language-related technologies. The fact that a free-of-charge machine translation tool, namely the Google Translate tool, was used was also a proof of insufficient competence and knowledge in the area of the rules of the translation art, illustrated further, among others, by the lack of post-editing skills and ignorance of the terms and conditions of the service. Using a free-of-charge machine translation tool may constitute a ground for asserting the claimant’s infringement of intellectual property rights owned by the defendant.

The method of work applied by the translator was inconsistent with the rules of the translation art as the confidentiality of the transferred data was not ensured and intellectual property rights owned by the client/the author of the source text were infringed. Machine translation with the use of the Google Translate tool does not satisfy the condition of ‘keeping strict confidentiality’ and leads to infringing third parties’ intellectual property rights.

In my opinion, any entity providing professional specialised translation services should be aware of the risks arising from the use of tools that are not intended for professional and commercial purposes. Reading of the terms of service (in this case the Google Terms of Service for Google Translate) specified by the service provider should be considered as the absolute minimum of diligence is this regard. Far-reaching rights enjoyed by the machine translation service provider under the Terms of Service in question should result in the prohibition of using this service for translating any specialised texts protected by copyright owned by the clients.

On the professional translation market, a strong emphasis is placed on a clear indication that translations were done with the use of machine translation tools. For this reason, the two processes are covered by two different quality standards. ISO 17100:2015, which specifies procedural and quality requirements for translation services, explicitly excludes any machine translation with further post-editing from its scope. Translations done within such procedure are considered as not compliant with the quality requirements provided for by this quality standard. Machine translation and post-editing are covered by a separate quality standard – ISO 18587:2017.

The introduction to ISO 18587:2017 states:

‘(…) there is no MT system with an output which can be qualified as equal to the output of human translation and, therefore, the final quality of the translation output still depends on human translators and, for this purpose, their competence in post‑editing.’

Importantly, the quality standard on machine translation makes a clear distinction between a ‘translator’ and a ‘post-editor’. A person who only verifies the output of the machine translation and introduces corrections is not a translator under the standard. In the case in question, 92% of the translation was the post-edited output of machine translation, while 8% was so-called raw machine translation product.

Post-editing must be agreed with the client in advance.

It should be clearly stated that the use of machine translation is certainly not entirely excluded from a professional translation process. Quite the opposite, it is a common procedure for non-literary texts of the relatively low level of complexity and difficulty, not intended for highly specialised uses, such as domestic appliance users’ guides, product descriptions at online shops’ sites, simple commercial and informative texts, simple contracts, terms and conditions of services, instructions, etc.

In the case of more complex texts, where quality requirements are higher, machine translation is used only in a supportive function as suggestions or reference materials.

It should be emphasised that in the case in question the main issue was not the very fact of using machine translation but using it in a manner that is extremely unprofessional and in breach of any universally accepted rules of the art of translation and industry best practices.

The use of professional machine translation tools is acceptable only upon the express consent of the client and it constitutes a different type of service than the traditional translation service. The machine translation service is governed by a different quality standard than the translation service (for translation service it is ISO 17100:2015, while for machine translation service it is ISO 18587:2017). In the period in which the translation at issue was done, the Google Translate tool was based on the so‑called statistical machine translation, which resulted in outputs of a significantly lower quality than those produced currently by the neural machine translation.

As for the violation of the rules of the translation art by using the Google Translate tool, it should be explained that this claim arises from the fact that the use of any services offered by Google is equivalent to the acceptance of their Terms of Service and Privacy Policy, which raise justified doubts related to confidentiality and intellectual property rights issues. An analysis of the consequences of using Google services for professional translation purposes is included below.

 

Google Terms of Service

The Google Terms of Service[1], as applicable in the relevant period when the translation to which the judgment in question relates was performed, state as follows: When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services [own emphasis].

In the context of such terms and conditions: firstly, the translator violated the Google Terms of Service by sending to the Google Translate tool the content it had no right to use for any purpose other than translation. Secondly, by sending the full text of the book to the Google service, the translator granted Google a worldwide license to use, host, store, reproduce, modify, communicate, publish, publicly perform, publicly display and distribute the book of the claimant. It should also be taken into account that Google regulated the matter of using its services in business contexts as well: If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Google and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Services or violation of these terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees. Therefore, assuming that the claimant was aware of the manner in which the service was performed, or at least it is fully responsible before the defendant for the tools used by the translator, the claimant accepted the Google Terms of Service and assumed liability for claims arising from the violation of the Google Terms of Service. According to the translator’s statement, the claimant was aware that the text was translated with the use of the Google Translate tool.

Google Privacy Policy

Google Privacy Policy also includes important points related to the use of the Google Translate tool in this case[2]. According to the document: We collect information to provide better services to all of our users – from figuring out basic stuff like which language you speak, to more complex things like which ads you’ll find most useful or the people who matter most to you online. There are two manners of collecting data. The first one is to collect data provided by the user, while the second is to collect information received while Google services are used. Google may collect data on services used by the user and on the manner in which they are used (e.g. when the user visits a site with an ad tool or when the user displays and clicks on ads and materials made available by them). Google collects information, among others, in logs: When you use our services or view content provided by Google, we may automatically collect and store certain information in server logs. Such information may include details on the manner in which the service was used, e.g. searched expressions, phone call log data, IP address, data on the functioning of the device, cookie files, etc. We use the information we collect from all of our services to provide, maintain, protect and improve them, to develop new ones, and to protect Google and our users. We also use this information to offer you tailored content – like giving you more relevant search results and ads.

According to its Privacy Policy, Google is, therefore, entitled to collect and record in server logs any information collected from the use of Google services by the user, and in particular, it is entitled to automatically save on its servers any phrases searched by the user. When using the Google Translate service, the translator entered into the machine translation tool almost the entire content of the book, thus allowing Google to save it on its servers and to use it for its own purposes.

Finally, I would like to make several observations inspired by the ruling discussed, which may prove interesting from the perspective of daily translation and localization industry practice.

  • The fact of leaving in the edited text some untranslated words, obvious linguistic and spelling errors, as well as the presence of excerpts that are entirely incomprehensible, is equivalent to the occurrence of critical errors that make it impossible to use the translation for professional purposes.
  • In the case in question, the TC claimed that even though certain parts of the text were found to be defective in terms of language style or too literal, and their register was not appropriate for the specialised translation, the text was comprehensible, which should be regarded as enough to satisfy the quality requirement under the ‘standard’ service option provided by the TC. ‘Comprehensibility’ of the text is a minimum criterion in the case of ‘budget’ translations (with low prices and short deadlines) offered for informative (indicative) and client’s internal purposes. In such circumstances, aspects such as style, word order, vocabulary or register may indeed be seen as matters of secondary importance. In the case of translations that are supposed to be used for professional purposes, however, the fact that the text is ‘comprehensible’, while at the same time being unreadable, incomplete and abundant in linguistic defects, do not justify recognising the translation as performed properly.
  • The text intended for professional purposes must encourage the trust of the reader, also on a linguistic level. A literal approach and the use of informal expressions may result in the reader’s questioning substantive aspects of the translation, which excludes its further use or quoting. Errors being typical consequences of improper use of machine translation disqualify the text in the eyes of a professional reader.
  • It is the translation company as a party to the agreement entered into with the client that is responsible for choosing a translator. Any potential selection based on clients’ preferences should be made from the group of people properly verified by the translation company in terms of their translation competence and their ability to ensure an adequate level of translation in a given domain. The translator in this case did not satisfy such standards.
  • As for the involvement of the client in the process of translating book publications, when referring to this issue in general and without any specific reference to the case in question, it may be said that cooperation between the client/the author and the translation company/translator is highly desirable and has a positive influence on the output of the translation process. This condition, however, is not a sine qua non for the service to be provided correctly, but it is rather a good industry practice. When such cooperation is established, it is possible to agree on terminological choices, clarify potential ambiguities of the source text, and obtain reference materials and additional materials that may prove useful in the process of translating the text.
  • Bad quality of the source text has an impact on the quality of the translation. However, due diligence expected of any professional means that a client ordering the translation should be notified that the material provided is not suitable for the purpose of providing the work properly (see Article 634 of the Polish Civil Code). In this legal relationship, it is a translation company that acts as a professional that accepts an order and it should assess the material provided in terms of its suitability for the proper performance of the work. The client usually does not possess knowledge and expertise to adequately assess whether or not the material provided is suitable for translation.
  • The translation company has an obligation to provide the ongoing quality supervision and organisational supervision of the translation process and it is responsible for the selection of tools used by the translator. Similarly, the translation company must ensure quality control before the translation is handed over to the client. The fact that the service ordered did not include verification, but only editing by a native speaker, does not justify the translation falling short of basic quality standards respected in the translation industry.

The ruling described above is subject to appeal. An appeal has been filed indeed and the case will be heard by the second-instance court – the Regional Court in Poznań. I will continue to follow the case closely to share with you information on the final decision in this extremely interesting case.

[1] Google Terms of Service applicable between 1 March 2012 and 11 November 2013, available at: https://policies.google.com/terms/archive/20120301?hl=en&gl=en

[2] Google Privacy Policy applicable between 24 June 2013 and 20 December 2013 available at: https://policies.google.com/terms/archive/20120301?hl=en&gl=en