I come across confidentiality - related issues on a regular basis, both as a freelance interpreter and translator, and also via the professional conduct committees of the spoken and signed language interpreters’ and translators’ professional conduct committees of which I am a member.
However, while confidentiality is a significant aspect of the everyday working life of interpreters and translators, it is also a subject which seems to receive only scant attention on initial and continuing professional development training courses.
Definitions of “confidentiality” and “confidential information” tend to echo themes of secrecy, privacy, trust, loyalty and security.
The freelancer’s duty of confidentiality
This stems from duties laid down in the codes of conduct of the professional organisations of which s/he is a member and/or from the clients’ codes of conduct which s/he may have been required by them to sign. Of course, business - savvy freelancers will also ask their clients to sign their terms and conditions regarding inter alia confidentiality.
A freelancer working in solicitor - client consultations is probably bound by different (albeit similar) duties and codes to those of the solicitor for whom s/he interprets – we are almost singing from the same hymn sheet, but not quite.
Responsibility for our subcontractors and NDA’s
Ensuring that our subcontractors respect the duty of confidentiality is a big ask. Probably the most that we can do is require colleagues to whom we subcontract and/or delegate work to sign a Non-Disclosure Agreement (NDA) with us. This will probably be in addition to the NDA that our client has asked us to sign. Hopefully the client’s NDA will also include a clause authorising us to subcontract work in the first place. If it does, the client’s NDA may require any subcontractors to be named.
In my experience, many NDA’s run to 10 or more pages (20 is not uncommon!) and thus are often hurriedly signed – but not actually read – by many interpreters and translators. To make matters worse, it is common practice in our profession for colleagues to subcontract and/or delegate work which they consider to be onerous (usually due to technical complexity or volume, or both) without their clients’ knowledge or permission. As for our subcontractors, they may not be aware of the identity of the end-client or even as to whether or not the end-client has authorised the subcontracting in the first place. Subcontractors may want to ask their contractor colleagues some pointed questions here!
Insecure work places
These days hardly anyone works exclusively in relatively secure settings, such as home offices; most of us also work on the move, yet the duty of confidentiality applies to any and all of the places where we work. Insecure places include trains, waiting rooms and cafés.
Disclosure required by law and other not so clear situations
Interpreters - particularly public service interpreters (PSI) are aware that a client’s confidentiality can be breached where disclosure is required by law, for example, if there is potential or actual abuse of children and/or the elderly, or generally when clients threaten to injure or kill themselves or another person. Perhaps less clear situations are job assignments not involving physical harm but where the interpreter or translator becomes aware that another type of offence may be occurring or about to occur – for example money laundering, falsification of identity documents and so on. Should the interpreter breach the client’s confidentiality by informing the police and risk possible legal repercussions for doing so? What if the interpreter has got it wrong or can’t actually prove anything?
Grey area scenarios like these ones highlight the need for interpreters and translators to take out professional indemnity insurance and also for our professional organisations to operate (confidential!) legal help lines. What is clear is that few clear guidelines exist for interpreters and translators who unwittingly find themselves caught up in potential legal minefields and who may be unsure of where their duty of confidentiality starts and ends.
Particularly difficult situations often arise for PSI’s because we are regularly subject to tales of torture and abuse. Police officers and other professionals working in the public services have automatic access to in house confidential counselling services – officially we have nowhere and no one to turn to.
Instructions by clients to destroy confidential information once the job has been completed can be another legal minefield. If we sign an NDA to this effect, what do we do if there is a complaint weeks or months later and we cannot defend ourselves as we no longer have any evidence? Also how can clients police us? Surely they can’t – they just have to trust that we will abide by a ‘destroy’ clause in their NDA.
In any event, forensic IT experts tell us that simple deletion of contents from our computers is not enough – we would need to take a hammer to the hardware to ensure total destruction of all of the data contained therein. We probably need to explain some of these issues to clients and also to advise them about the existence of our footprints on any terminology websites and e-networking groups where we may have sought specific subject and/ or terminology advice. What about other information that we may have put into the cloud and into file-sharing generally? How many more times will this information be shared on? The truth is that we simply don’t know.
How long does the duty last?
Another minefield is how long confidential information has to be kept confidential? Clients’ information (or at least some of it), such as trade secrets, financial details and politically sensitive information, may have to be kept confidential for varying amounts of time: months or even years – possibly forever if we sign the Official Secrets Act. However, restrictive clauses in NDAs have to satisfy ‘reasonableness’ criteria, so each situation has to be carefully considered on an individual basis.
Finally, confidential information relating to colleagues and clients which is known to us also has to be treated with caution. Seemingly innocuous gossip, whether shared online during e-networking, or face-to-face may be enough to harm a colleague or client’s professional reputation permanently and to land those involved in deep professional misconduct waters. So firstly, engage brain and only then open mouth!
About the author:
Sue Leschen is a lawyer – linguist, the Director of Avocate a niche market legal and commercial French language services company and also an independent trainer for language professionals in the areas of professional conduct, legal terminology and everything you need to know and do to set up and run a successful business.
Sue is a member of the Professional Conduct Committees of:
She is also member of:
Sue supports the need for qualified, experienced, security vetted, insured and committed professional interpreters and translators.
|Publicada em: 07/12/2016|