When preparing to be certified for the DIN ISO 17100:2015 standard, the EVS Translations Group conducted thorough research into the subject of product liability in translations. This is because it is not as simple as with “tangible” products. To the extent that, the subject of how it affected us as a translation service provider, also bothered our customers.
EVS Translations got professional advice from Justyna Rulewicz , a lawyer at GLOCK Rechtsanwälte Notar, who threw light on the situation:
“If a faulty product causes damage, the claimant generally has two bases for claim available. Firstly, there is what is known as “producer liability in tort”, according to Section 823 of the German Civil Code (BGB), which assumes the willful intent or negligence of the producer. Secondly, there is liability according to the German Product Liability Act (ProdHaftG). In this case, it does not depend on willful intent or negligence, therefore, it is classed under “absolute liability”. This cannot be excluded or limited by the producer in individual contracts or in the terms and conditions (Section 14, ProdHaftG). Now, you might believe that the case is unambiguous. However, with translations, we are not dealing with a product in the sense of a “movable asset” (Section 2, ProdHaftG), but a service, or rather, an intellectual service. According to the dominant opinion in literature and case law, liability for translation errors is excluded, in accordance with the German Product Liability Act.
Producer liability, according to the BGB, is applicable insofar as “product” is understood to also include intellectual services – such as translations. However, liability is again narrowed down to the level of negligence: The producer is liable only when they acted with willful intent or negligently (as defined by Section 276, BGB).
Here there is also always a possibility of “exoneration”, in which it can be pleaded that necessary precautionary measures were followed. In the B2B sector, liability can also be limited in the terms and conditions, to the extent that simple negligence is excluded. However, in cases of gross (serious) negligence, there is still a claim for damages, which is limited to predictable, typically occurring damages.
So what are the predictable, typically occurring damages as a result of incorrect translations? An example would be the translation of an information leaflet that needs to be reprinted because of a translation error. The cost of reprinting illustrates foreseeable, typically occurring damages in the context of translation services, for which the translation service provider is liable to the customer. In contrast, atypical damages or unusual combinations of damages are excluded by a corresponding clause in the terms and conditions.
Product liability or producer’s liability is, in truth, no easy undertaking – particularly not with a “product” as complicated as a translation. Therefore, always be on the safe side, with professional advice, and create a clear foundation for the customer and the language service provider.
* Justyna Rulewicz has been a lawyer at GLOCK Rechtsanwälte Notar in Frankfurt am Main since September 2015. Alongside contract, commercial, and corporate law, her specialist fields include competition and copyright law, as well as IT and Internet law. It is only logical that she advises EVS Translations on product liability, as she speaks four languages herself.