Charlie Bavington

French to English Freelance Translator - I.T. specialist

Bringing a pragmatic eye to meeting your needs

Corrosion of confidentiality II

July 19th, 2013 | Categories: business

Towards the end of last year, I blogged about whether all the material we, as translators, are bound, explicitly or implicitly, to keep confidential really warranted the “confidential” tag. My context (!) was cloud services and GT, and whether using them was a breach, and whether, as things stand, if such use does constitute a breach, it would be possible to persuade end clients to review their position on what is and is not truly confidential.

That remains my stance; the client decides what is confidential, not us, yet it might be useful if the purveyors of the tools that seemingly encourage us to potentially breach confidentiality at every turn could devote some energy towards persuading clients a) that their tools do not breach confidentiality agreements and/or b) to revise their confidentiality thresholds. Perhaps b) might happen anyway as the world in general moves into the clouds, as it were. And so there was some prodding of the notion of what might and might not constitute a breach of a kind to cause client consternation.

This week has seen an interesting case of an alleged breach of confidentiality that has quite possibly not only not harmed the party in question, but has, at least by some measures (financially, for one), actually benefited her. J K Rowling has been revealed as the author behind a pseudonym, and sales have soared. She, meanwhile, appears most dischuffed, and is consulting our learned friends.

I daresay the web is awash with comment. I think that the post and comments in Jack of Kent’s blog (David Allen Green) are very interesting from our point of view. This chap knows his stuff, and so do his commenters.

In the introduction, he confirms the hypothesis from my earlier post, which (unless I’m just seeing what I want to see, in which case, please put me right) can be summarised as that in general, for breach to be actionable, the claimant needs to have suffered loss or damage, or the wrongdoer needs to have gained.

Apparently contradicting that, barrister Steve Hackett says, both in a comment on Jack of Kent’s blog and in his own blog post, that “it is fairly clear that the court has the power to compensate a claimant who has suffered no financial loss and considers it appropriate to do so” [i.e. be compensated]. In JKR’s case, this could be for loss of anonymity; others posit invasion of privacy. In the case of a translator breaching a client’s confidentiality, I’m sure other examples could be found (e.g. revealing future commercial plans).

Meanwhile, Carl Gardner, who runs the Head of Legal blog, opens his remarks with a seemingly disclosure-friendly “I agree breach of confidence/misuse of private information isn’t “actionable per se” – there needs to be some detriment to the claimant.” He then spoils it all by saying “I’m not sure detriment has to be anything like a monetary loss, though.” So, see above!

Now, while these knowledgeable folks are tossing ideas around about a private individual not a company, who has seemingly gained from the disclosure not lost, it seems well within the realms of the possible to my very inexpert eye that a breach of confidentiality might not have to result in either a pecuniary loss for the claimant or a gain for the wrongdoer to get the legal ball rolling. Spinning the event into a loss for JKR or third parties is far from beyond the lawyers commenting, and is a lesson to us all in how a determined party could make trouble for a translator for the merest transgression.

Hence, it really does look as though any change to confidentiality that would enable us to ethically and openly use cloud tools, MT and so forth with relative impunity really will have to come from clients reducing the scope of confidentiality itself. Otherwise, in England and Wales at least, you run the risk of being hauled before the beak, as no-one has actually said in real life since before I was born.

  1. July 20th, 2013 at 12:07
    Quote | #1

    As you know, many clients have little or no understanding of where confidentiality is truly relevant. For example, yesterday one sent me a single page from a published patent and requested that I sign an NDA before receiving the remaining 13 pages. I told her that I failed to understand the relevance of this to a public document which I could find and download in a few minutes.

    • Charlie
      July 20th, 2013 at 16:55
      Quote | #2

      Right enough. I have a suspicion too that in terms of direct clients, the individuals we often deal with don’t have (or would feel they don’t have, if asked) the necessary authority to lift the veil of confidentiality even when they can see our point, and in terms of agencies, passing such requests back and forth is probably a long-winded rigmarole of no benefit to them that they can live without.

      And perhaps that is the point. Show the benefit to the (end-)client of reducing confidentiality, and one hopes the task would be easier….
      (current status of breath: not being held)

  2. August 8th, 2013 at 12:20
    Quote | #3

    Even if a patent’s public, the client’s interest in having it translated may not be. One can imagine all kinds of scenarios in which companies would rather not signal their interest/activity in a certain area; though if this were the rationale, the logical time to send the NDA would be before even sending the first page, so doubtless you’re right that it can be overdone.

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