The Creepy Spy Clause in Translation NDAs

It seems the translation giants are at it again, exercising increasing power over the little guy while trying to conceal their abuse of contractual asymmetry behind the reservation of a “right”. The angle this time? “Reserving the right to scan your computer and carry on onsite checks of translators.” So official, yet so problematic.

Now, before I pour out my analysis, allow me to make a pertinent digression: As a very bright young lawyer/interpreter pointed out in the forum that inspired this post, I’m a lawyer and law professor in a country under the civil law tradition; therefore, my view may be biased by my own system and not everything I’m about to write in this post applies to all countries. However, as I replied to said bright young colleague, there are general principles of law recognized by most countries and that is what I will focus on here. So unless you are in the most backwards legal system on Earth, the following is likely to apply to your jurisdiction as well.

YOU CAN’T RESERVE RIGHTS YOU DON’T HAVE OVER OTHER PEOPLE’S PROPERTY

Your property is yours and you can waive rights over your property. For example, if you are a homeowner and you rent out or lease your home to someone, you waive certain rights to your tenant or lessee. However, nobody would have a right to enter your home and exercise property rights without your permission simply because you put a FOR RENT sign on your front lawn. Similarly, nobody can take control of your property (including your computer) simply because you are providing a service to them. Of course, property can be seized or confiscated by the government (including the judiciary) in some cases and countries, but that kind of control over your property is different and cannot be exercised by private persons without government authorization in most advanced legal systems.

Companies drafting clauses like the one in question are not technically “reserving a right” because they don’t have said right to begin with. What they are doing is asking you to waive some of your rights to them. The decision is yours. It should not be forced upon you as if you had no choice, as if the company had a right to such action, or as if this was a widespread practice in translation. Although onsite and computer checks are a widespread practice in other fields, translation is not one of them; and the reason for that has a lot to do with how the nature of our work differs from that of “vendors” or “contractors” in other areas. But that is a whole other story. Of course, there can be exceptions to all this, but I’m referring to the specific case of a freelance translator working from home/office for a big LSP that may even be located in a different country.

TRANSLATORS HAVE A RIGHT TO PRIVACY AND CONFIDENTIALITY

What’s the difference between privacy and confidentiality? Privacy is all about you and confidentiality is all about others.

You might have “things and stuff” on your computer you don’t want anyone to see: family photos and embarrassing videos of your failed attempts at volleyball when you accidentally broke your neighbor’s window (true story). Whatever it is, it’s PRIVATE. The right to privacy is a human right (and an individual element found in many Constitutions and legal systems) by which neither governments nor private individuals can poke their noses in your business -that includes the “things and stuff” on your computer. It is found, among other places, under Article 12 of the Universal Declaration of Human Rights: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

If you’re in the UK, I believe you can’t take privacy suits to court, but you can still protect your privacy under different torts and are protected by the ICO and the Data Protection Act of 1998; Freedom of Information Act of 2000; Privacy and Electronic Communications Regulations of 2003, among others. You should ask a local lawyer about this, though. If you’re in the US, I’m sorry to tell you The Man does not care much about your right to privacy when the government is the one doing the spying, but there are many precedents where individuals have been granted protection from private parties or corporations. Meanwhile, if you’re in Latin America, you’re likely to have strong constitutional protection of your privacy, especially if you’re in a country with a “constitutional bloc.” Wherever you are, chances are you have some form of protection and your local lawyers can advise you on your options.

Confidentiality, on the other hand, is construed in many (though not all) countries as limiting or restricting access to information you may hold that can affect others. In other words, while privacy is all about you, confidentially is all about other people, including your clients. And if the client proposing the creepy spy clause (Client B) is not your sole client and/or you have sensitive information on, about or belonging to other clients (Client A), you may be breaching Client A’s confidentiality by agreeing to Client B’s clause. So be careful and watch what you sign!

YOU CAN’T JUST PUT ANYTHING YOU WANT IN A CONTRACT

While contractual freedom is a general principle of law, it does not mean that you can put anything you want in a contract and then expect to enforce it. If I entered into a contract with a hit man to kill my noisy neighbor in exchange for $8 thousand and paid $4 thousand upfront, agreeing to pay the remaining $4 thousand when my neighbor’s dead, and then the hit man failed to kill my neighbor and return my deposit, there is no way on Earth I would be able to enforce that contract. Why? Because killing people is illegal. So I can draft the most nit-picky contract in the world, I’d still lose in court (and probably end up in jail for conspiracy to murder). See where I’m going with this? If the object of a clause violates the law, it is unenforceable. In some jurisdictions it will invalidate the entire agreement, in others just the clause, but the point is that if it is unlawful, courts won’t enforce it.

How do you know if the clause is unlawful in the jurisdiction in question? The easy way is to ask a lawyer or resort to a protection agency, such as the UK’s ICO or similar bodies. But if you’re lawyer-averse, then look under privacy, confidentiality, competition, real property or intellectual property laws in your country. Chances are you’ll find more than one argument to challenge such clauses in several of these laws (I can think of at least three in different laws in my country).

DOES THIS MEAN NDAs CAN’T INCLUDE CONFIDENTIALITY PROTECTION CLAUSES?

No, that’s not what this means at all. What this means is simply that there are more efficient and lawful ways of going about it. Why someone would chose the “creepy approach” to ensuring confidentiality is beyond me. But as translators, we don’t have to agree to these clauses –unless we’re hopelessly desperate to work for such companies, in which case we’re better off marketing ourselves more efficiently and trying to land better and not-so-creepy clients.