| Vom Thema belegte Seiten: [1 2] > | Are negative Blue Board postings defamatory? Initiator des Themas: Jessica Noyes
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Jessica Noyes 
Vereinigte Staaten
Local time: 22:21
Mitglied
Spanisch > Englisch
+ ...
(Moderator, please feel free to switch forums for this one.)
Even though I am a Canadian, I have no regular clients from my native country. (I live in the US.) As I believed that my experiences with Canada's two main cultures might give my translations a subtle advantage, I quoted on a ProZ.com job for a Canadian company. Their Blue Board rating was a 4, but I decided to go ahead, again because the company was located not just in Canada, but right in my home city.
I signed an NDA ... See more (Moderator, please feel free to switch forums for this one.)
Even though I am a Canadian, I have no regular clients from my native country. (I live in the US.) As I believed that my experiences with Canada's two main cultures might give my translations a subtle advantage, I quoted on a ProZ.com job for a Canadian company. Their Blue Board rating was a 4, but I decided to go ahead, again because the company was located not just in Canada, but right in my home city.
I signed an NDA that contained this clause: " The Contractor agrees to keep secret and confidential all matters ...relating to the research or affairs of XXXXX, including, but not limited to:...(b) any potentially defamatory data, and shall at all times refrain from placing such information online.."
After the first job I did for the company, I followed my usual practice of accepting no more work from them until I received payment for the initial work. This turned out to be a wise decision, because getting paid was quite an ordeal. I ended up contacting one of the posters on the Blue Board who had mentioned that he "finally" got paid, and he was kind enough to give me the inside information I needed to press forward until the check (or "cheque") finally arrived. My kind colleague had, of course made a post on the Blue Board, but I am reticent about doing so because of the NDA clause I cite above.
I see that the company continues to post jobs on this site, and it has a minimum number of recent Blue Board entries. I would like to make my negative experience known, but I am cautious because of the NDA. I would be interested to know if anyone has heard of a translator being sued or subject to other legal consequences because of making a Blue Board entry under such circumstances. I also wonder if a negative Blue Board post constitutes a "defamatory" statement.
Thanks in advance for any insight.
[Edited at 2015-05-30 13:39 GMT] ▲ Collapse
| | | | Sheila Wilson
Spanien
Local time: 03:21
Mitglied (2007)
Englisch
+ ...
| It's an interesting question | May 30, 2015 |
Jessica Noyes wrote:
I signed an NDA that contained this clause: " The Contractor agrees to keep secret and confidential all matters ...relating to the research or affairs of XXXXX, including, but not limited to:...(b) any potentially defamatory data, and shall at all times refrain from placing such information online.."
Is that actually allowed by law? Isn't it restricting free speech? Of course, you could simply refuse to sign these clauses (as I would), but that doesn't solve the issue.
It is being used increasingly at the moment, not just in our area of business. There has been at least one court case recently in the UK of a hotel/B&B who tried to enforce it, and I believe they lost. I'm involved with another on Trip Advisor - someone who gave negative feedback there about a private villa rental close to me, and has since been told that their claim for compensation is now null and void. Hopefully, that holidaymaker will fight back.
I would like to make my negative experience known, but I am cautious because of the NDA. I would be interested to know if anyone has heard of a translator being sued or subject to other legal consequences because of making a Blue Board entry under such circumstances. I also wonder if a negative Blue Board post constitutes a "defamatory" statement.
We certainly need to know about this company's practices. And it's what the Blue Board is there for. Whether these companies can force us to stop using it is a matter for the legal eagles.
It would be nice to have the opinion of staff on this. I'll bring this thread to their attention.
| | | | | Post removed: This post was hidden by a moderator or staff member for the following reason: Requested by poster | Tom in London
Vereinigtes Königreich
Local time: 03:21
Mitglied (2008)
Italienisch > Englisch
My advice would be: if in doubt, don't do it. A way around it would be to just give a low BB rating and restrict your comment to something like
"Not satisfactory. For further details please contact me privately".
After that, if anyone does contact you privately you would need to be careful how you respond, since that person may not be who you think they are
[Edited at 2015-05-30 13:... See more My advice would be: if in doubt, don't do it. A way around it would be to just give a low BB rating and restrict your comment to something like
"Not satisfactory. For further details please contact me privately".
After that, if anyone does contact you privately you would need to be careful how you respond, since that person may not be who you think they are
[Edited at 2015-05-30 13:50 GMT] ▲ Collapse
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Jessica Noyes
Vereinigte Staaten
Local time: 22:21
Mitglied
Spanisch > Englisch
+ ...
THEMENSTARTER | Title changed | May 30, 2015 |
Thanks to those who have responded so far. Tom in London, I changed the title as you are right: the original title was inaccurate.
| | | | Tom in London
Vereinigtes Königreich
Local time: 03:21
Mitglied (2008)
Italienisch > Englisch
Jessica Noyes wrote:
Thanks to those who have responded so far. Tom in London, I changed the title as you are right: the original title was inaccurate.
I've updated my post too. See above.
| | | | | Canada is a particularly bad jurisdiction for that sort of thing | May 30, 2015 |
Jessica Noyes wrote:
(Moderator, please feel free to switch forums for this one.)
Even though I am a Canadian, I have no regular clients from my native country. (I live in the US.) As I believed that my experiences with Canada's two main cultures might give my translations a subtle advantage, I quoted on a ProZ.com job for a Canadian company. Their Blue Board rating was a 4, but I decided to go ahead, again because the company was located not just in Canada, but right in my home city.
I signed an NDA that contained this clause: " The Contractor agrees to keep secret and confidential all matters ...relating to the research or affairs of XXXXX, including, but not limited to:...(b) any potentially defamatory data, and shall at all times refrain from placing such information online.."
After the first job I did for the company, I followed my usual practice of accepting no more work from them until I received payment for the initial work. This turned out to be a wise decision, because getting paid was quite an ordeal. I ended up contacting one of the posters on the Blue Board who had mentioned that he "finally" got paid, and he was kind enough to give me the inside information I needed to press forward until the check (or "cheque") finally arrived. My kind colleague had, of course made a post on the Blue Board, but I am reticent about doing so because of the NDA clause I cite above.
I see that the company continues to post jobs on this site, and it has a minimum number of recent Blue Board entries. I would like to make my negative experience known, but I am cautious because of the NDA. I would be interested to know if anyone has heard of a translator being sued or subject to other legal consequences because of making a Blue Board entry under such circumstances. I also wonder if a negative Blue Board post constitutes a "defamatory" statement.
Thanks in advance for any insight.
Canada's defamation laws are absurd enough as it is without a specific contractual obligation signed by you to refrain from defamatory publication. I have no knowledge of how Canadian courts handle product/service provider reviews and feedback about companies (such as the BB), but without specific advice from a qualified Canadian lawyer I would think that posting any sort of true facts that put a company in a bad light would lead to liability.
Unfortunately, BB outsourcers use gagging clauses like the one you cited. This allows them to continue getting grades of 5 from all the many translators who work for them, but not the 1s. I've brought this up with Proz.com staff multiple times, but they choose to ignore the problem in such conversations.
[Edited at 2015-05-30 14:07 GMT]
[Edited at 2015-05-30 14:07 GMT]
| | | | | As long as it's not "false" | May 30, 2015 |
Defamation
A false statement that harms a person's reputation. If the statement is published, it is libel; if spoken, it is slander. ...
(according to Nolo, for one: http://www.nolo.com/dictionary/defamation-term.html)
I don't really understand what "defamatory data" even means, but if you have so... See more Defamation
A false statement that harms a person's reputation. If the statement is published, it is libel; if spoken, it is slander. ...
(according to Nolo, for one: http://www.nolo.com/dictionary/defamation-term.html)
I don't really understand what "defamatory data" even means, but if you have something truthful to say, I don't see how they can prevent you under the law.
However, that doesn't mean they wouldn't try.
Even in the link Łukasz gives (although I hate to use Wikipedia myself), it states:
"Once a claim has been made out the defendant may avail him or herself to a defense of justification (the truth), fair comment, responsible communication, or privilege."
and goes on later to state:
"To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Therefore, communicating false information is not, in itself, a wrongful act." ▲ Collapse
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| Apparently the law is on your side | May 30, 2015 |
Again, you have to decide if this is really a risk for you and how much of one, since I'm sure none of us would want to even entertain the thought of being sued.
That said:
http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240
(from the Canadian Bar Association)
What are the defences t... See more Again, you have to decide if this is really a risk for you and how much of one, since I'm sure none of us would want to even entertain the thought of being sued.
That said:
http://cbabc.org/For-the-Public/Dial-A-Law/Scripts/Your-Rights/240
(from the Canadian Bar Association)
What are the defences to a defamation lawsuit?
If someone sues for defamation, the most common defences are:
truth (known in law as "justification")
absolute privilege
qualified privilege
fair comment
responsible communication on matters of public interest
1. Truth or justification
A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence if you sue them for defamation. They just have to prove, on the balance of probability, that their statement is true. ▲ Collapse
| | | | | Check the NDA carefully before signing | May 30, 2015 |
I don't sign anything with 'gagging' clauses.
One I've turned down said:
8. Recipient undertakes not to denigrate the services and the activity of XXXXX with third
parties ...
Such a clause would effectively block any negative Blue Board comment. And it became worse:
22. The infringement of the provisions set forth in Clause 8 shall authorize XXXXX to demand the payment of a penalty equal to Euro 30.000,00 in addition to compensation of any greater damages from Recipient.
To avoid defamation claims, I simply stick to verifiable facts on the Blue Board, so I would probably sign a defamation clause, unless it had automatic penalties built in. Defamation is already punishable by law in many countries, so it doesn't seem to change much that it's also written in a contract.
The company I refer to mostly has all 5's on its Blue Boards, but the Boards also have a few horror stories.
| | | | nordiste
Frankreich
Local time: 04:21
Englisch > Französisch
+ ...
| BB = likehood of working again with an outsourcer | May 30, 2015 |
From PROZ : "In the ProZ.com blue board, service providers enter, on a scale of 1 to 5, their likelihood of working again for a given outsourcer. An outsourcer's "average entry level" is the average of these numbers. "
You don't need to make any comment, just give a (low) rate.
BTW, you can assume that all tralslators have to sign this NDA, including the ones who give high BB rate. Did the company ever complain about its good BB ranking? ... See more From PROZ : "In the ProZ.com blue board, service providers enter, on a scale of 1 to 5, their likelihood of working again for a given outsourcer. An outsourcer's "average entry level" is the average of these numbers. "
You don't need to make any comment, just give a (low) rate.
BTW, you can assume that all tralslators have to sign this NDA, including the ones who give high BB rate. Did the company ever complain about its good BB ranking? ▲ Collapse
| | | | | The truth shall set you free! | May 30, 2015 |
While this is an interesting question, the discussion is rather unnecessary.
Defamation is by definition a lie, concocted to make someone look bad. The law itself makes defamation illegal, and putting it in an NDA consequently does nothing. It's buttering bacon, as it were.
You can't, however, be hindered from making true statements. It's like telling your friend that your new neighbor is a sex offender. If it's a lie, then the neighbor would have grounds to sue you. I... See more While this is an interesting question, the discussion is rather unnecessary.
Defamation is by definition a lie, concocted to make someone look bad. The law itself makes defamation illegal, and putting it in an NDA consequently does nothing. It's buttering bacon, as it were.
You can't, however, be hindered from making true statements. It's like telling your friend that your new neighbor is a sex offender. If it's a lie, then the neighbor would have grounds to sue you. If it is, however, the truth, then that's your absolute defense right there.
So in short - if it's true, then post it. Don't exaggerate or embellish.
If they come for you, who cares? You've got the perfect defense to have them thrown out of court - you were simply telling the truth.
- S ▲ Collapse
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| I would give a low rating without comment | May 30, 2015 |
The figure says it all.
Apart from that, if the outsourcer tries to influence your rating, that is against the BB rules - so notify staff and send copies of mails etc.
It may not help you in a court case, but I would do it anyway. As others have pointed out, defamation is spreading a story that is not true. If you had difficulty getting paid and would not work for that outsourcer again, those are simply facts.
| | | | | There is a small problem here | May 30, 2015 |
As long as a case is not judged in court, the other party is innocent, in most countries.
So the statement or claim is not true.
As the statement is not true, it is defamation.
I once had this problem with a client who did not pay me, but all the time said that he would pay. It was obviously a lie, but I could not prove it, and in fact some years later he went bankrupt without paying most of his translators.
Another problem may occur if the other par... See more As long as a case is not judged in court, the other party is innocent, in most countries.
So the statement or claim is not true.
As the statement is not true, it is defamation.
I once had this problem with a client who did not pay me, but all the time said that he would pay. It was obviously a lie, but I could not prove it, and in fact some years later he went bankrupt without paying most of his translators.
Another problem may occur if the other party, a company for instance, is afraid for its reputation.
An attack to its reputation can also be understood as defamation or libel.
In each case I would be very cautious when putting a negative rating in the Blue Board, limiting it to "at xx.xx.2015 I did not receive any payment". ▲ Collapse
| | | | | FACTS can't be deemed defamatory | May 30, 2015 |
The question on the BB is on "likelihood of working again".
I think that something to the tune of "I delivered on time, no quality issues, however got paid three months later than the agreed date. I'd work for them again only if paid in cash up-front." cannot be taken as defamatory. It merely states FACTS, that can be proven with unquestionable evidence.
However things like...
PMs there are extremely impolite
PMs there are extremely impolite
they only pay when threatened with legal action
they should be in jail
after payment was due, they stopped answering my phone calls
definitely a bunch of scammers
... are clearly defamatory, as they are difficult to prove, evidence being often subjective. ▲ Collapse
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