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 professional activities invariably sparks controversy, 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 genuine disinterestedness and gratuitousness, for instance, in 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 applies to translators using Google Translate to provide specialised translation services. 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 lives, it’s essentially 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 the 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, a specialised handbook on C programming for microcontrollers, provided by the TC. The translation was also very delayed. Despite a complaint being 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 their 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 5th-year student in a Computer Science university programme and a laureate of the national English-language competition for high school students. During the hearing, the translator stated that he had completed 92% of the translation using Google Translate and had corrected it 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 the delay in translating the text. The TC and the client entered into an agreement on the translation in the 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, and the text’s register was far from that expected for any text intended for publication. Having heard the case, the District Court for Poznań-Stare Miasto delivered a ruling dismissing the claim and ordering the claimant to pay the costs 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 the relevant qualifications, professional skills, or 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 the lack of applying any quality control procedures. The use of the Google Translate tool leads to violating confidentiality obligations 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 the 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, does 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 still be 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 the claimant itself 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 had to do 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 only 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 a 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 the debtor may intentionally cause to a creditor 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 of the client’s intention to publish the translated book. The TC’s employees assured the client that the translation under 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 lawmakers, this does not mean, however, that each person who does a translation in exchange for money may be called a professional translator.
