TransPerfect: a fateful inquiry, push-back, and the Streisand effect
von , veröffentlicht am 01.09.2023Translation industry outsiders get all the advertising, all the propaganda, all the self-praise translation service providers have to offer. But it is a rare moment indeed when they get a glimpse into the inner workings of these service providers.
A case on LinkedIn affords us one of these rare moments. What follows is a tale of mishandled personal data, of mishandled confidential client information, of the stupidest practice the language services industry knows, of a possible GDPR violation, and of a cease and desist letter from one of the world’s largest language services providers, who is big mad that its mishandling of confidential client information has become public knowledge.
TransPerfect – presumably through one of its European offices, for reasons that will emerge below – recently sent an inquiry to Mr. Loek van Kooten, a Leiden-based translator. It wanted to know whether he would be interested in aiding with the translation of 700,000 words from English into Dutch. TransPerfect’s inquiry is striking. TransPerfect claims it is “at the final stages of closing a deal from Gameloft related to Disney Dreamlight Valley.” A big project by any measure.
Here’s what we know.
In a LinkedIn post, Mr. van Kooten claims that he never signed a contract with TransPerfect; that he has turned down translation projects offered by TransPerfect since 2008; that TransPerfect has been harassing him “for more than 15 years”; that he made multiple requests to be removed from TransPerfect’s database; and that it took three removal requests before he received confirmation of removal. In another LinkedIn post, Mr. van Kooten provides a screenshot of what seems to be his third removal request and TransPerfect’s confirmation of removal – his request is dated 2012, some eleven years ago, and the confirmation is undated, but presumably also from 2012.
On their face, Mr. van Kooten’s claims are not as clear as one might wish. One the one hand, it seems that, in 2012, he managed to get the confirmation that his information was removed from TransPerfect’s system. On the other, it seems that he has received emails from TransPerfect over a fifteen-year period. Simple subtraction suggests continuous contact by TransPerfect from 2008 through 2023 despite the 2012 confirmation of removal, that is: 2023 – 15 years = 2008. But this lack of clarity should not prevent anyone from taking his claims at face value until further information becomes available.
Mr. van Kooten’s claims may be unclear and their truth or falsity may be open questions. But the fact of the matter is they do contain a kernel of plausibility. In the past, at least one TransPerfect employee failed to respect others’ personal data. According to an Amended Class Action Complaint filed on May 19, 2017, TransPerfect employees received emails from cyber-criminals containing a request for certain tax and payroll information, and “[a]t least one TransPerfect Employee responded to the e-mail and provided the requested information” (¶3 of that complaint). This data breach ended up costing TransPerfect several million dollars. Put differently, Mr. van Kooten’s claim that TransPerfect mishandled his personal data comports with the costly mishandling of personal data by at least one TransPerfect employee in the past.
While TransPerfect did not admit to any wrongdoing when it settled its class action lawsuit for the 2017 data breach, employer reviews seem to indicate that TransPerfect shares at least some of the responsibility here, both on the people and the data-security side. From the outside looking in, TransPerfect seems to have an unhealthy corporate culture and at least some absence of data-security safeguards.
Not uncommon criticisms of TransPerfect include claims that it underpays its employees, that it overworks and micromanages its employees, that HR is awful, and that its corporate culture is toxic and bad for employees’ mental health. And at least one reviewer claims TransPerfect allows employees to work from home, but fails to provide employees with any of the necessary equipment to do so. Presumably, this failure would include the failure to provide employees with computers or other relevant data-security safeguards. (See, for instance, the employer reviews of TransPerfect here for these and other criticisms.) Put plainly, there exists at least some plausibility that a company with such a seemingly poor track record on both the people and the data-security side would mishandle Mr. van Kooten’s personal data, for any number of reasons: from employee apathy to an absence of safeguards to …
If there is some plausibility to the claim that TransPerfect mishandled Mr. van Kooten’s personal data, then there is some plausibility to Mr. van Kooten’s insinuation that TransPerfect mishandled confidential client information when it sent him its Gameloft project inquiry. We know the Gameloft project is confidential client information, because Mr. van Kooten published on LinkedIn an excerpt from a cease and desist letter sent by TransPerfect’s New York-based general counsel confirming as much.
But let’s leave this cease and desist letter to the side for the moment. What reason could TransPerfect have to contact Mr. van Kooten for this project? The answer is: the stupidest practice the language services industry knows. TransPerfect wishes to take on work from Gameloft (related to Disney) without having any translators to handle that work. TransPerfect went on a fishing expedition. It didn’t post a call for translators. It didn’t want to conduct interviews with translators. TransPerfect just emailed a number of translators it has in its database and waited to see who took the bait. This deal is so important to TransPerfect it’s willing to entrust it to translators it knows nothing about.
No one at TransPerfect seems to know anything about any of these translators beyond their email address. No one at TransPerfect seems to have had anything to do with any of these translators in the past. No one at TransPerfect seems to know which translators should be in their database or no. No one at TransPerfect seems to care about anything other than CVs and rates. The inquiry states that being part of the “linguist team” requires only that translators share their (1) CV, “mainly for us to understand your gaming experiences”; (2) daily output, that is, the number of words they translate or proofread per day; and (3) “usual rate” for translation and proofreading.
What is more, it goes on to cite the necessity of “signing the GDPR” – that’s not a typing error. Verbatim, the inquiry reads, “we would need you signing the GDPR” [sic]. The irony is palpable. On its face, it would seem TransPerfect sent this inquiry in violation of the GDPR. Mr. van Kooten requested that TransPerfect remove his personal data from its database, TransPerfect confirmed his removal, and TransPerfect retained and used his personal data anyway.
Of course, that’s hyperbole. Too many relevant facts remain unknown to the public. Still, there are data protection concerns here, and they point to a possible GDPR violation. Of course, TransPerfect was permitted to store Mr. van Kooten’s personal data in 2012 with or without his consent within the meaning of the GDPR. The GDPR didn’t exist in 2012. The facts now available to the public and the screenshot provided by Mr. van Kooten do make it look, however, as if TransPerfect has failed to exercise its duty of care with regard to maintaining its database, at least with regard to Mr. van Kooten’s personal data.
Put differently, TransPerfect should have noted in its database that Mr. van Kooten wanted TransPerfect to remove his personal data from its system, even if TransPerfect in 2012 continued to store that data. Such a note would have made good business sense. Why contact someone for translation work, if that someone does not wish to work with you and has repeatedly asked to be removed from your database? Hence, it looks as if TransPerfect either failed to remove him from its database or failed to make any such note in its database or failed to review its database notes prior to inquiring with Mr. van Kooten in 2023. Any one of these failures would, it seems to me, strip TransPerfect of its legal basis to use Mr. van Kooten’s personal data, even for purposes of offering him a translation project. Based on the 2012 confirmation that he was removed from TransPerfect’s database, Mr. van Kooten had a reasonable expectation that he was in fact removed from that database.
In view of this fact, any one of those failures would lead to the same consequence for TransPerfect. If TransPerfect failed to remove him from its database despite its confirmation of removal, TransPerfect was negligent. If TransPerfect failed to note Mr. van Kooten’s removal request in its database, TransPerfect was negligent. If TransPerfect failed to review its database notes prior to inquiring with Mr. van Kooten in 2023, TransPerfect was negligent. After all, the GDPR does exist today. If any one of these possibilities is in truth an actuality, there exists a real possibility TransPerfect has violated the GDPR – all for the sake of a fishing expedition, the stupidest practice the language services industry knows.
Now one may agree or disagree with Mr. van Kooten’s LinkedIn publication of TransPerfect’s inquiry and, by extension, his disclosure of TransPerfect’s confidential client information. Make no mistake. Both the publication and the disclosure seem to be retaliatory acts for what Mr. van Kooten claims is fifteen years of harassment by TransPerfect. Regardless whether one agrees or disagrees, there seems to be a simple and relevant fact here. Mr. van Kooten should never have received that confidential client information in the first place.
To point this out is not to blame the victim. TransPerfect is a major player in the language services industry. It had at least two reasonable options to address Mr. van Kooten’s publication and disclosure. It could have ignored both and let this matter blow over with little reach beyond Mr. van Kooten’s social media circle. Or it could have reached out to Mr. van Kooten with an apology, a confirmation it will never contact him again, and a polite request that he delete his initial LinkedIn post. But TransPerfect decided to flex its muscle and to disregard both options.
TransPerfect sent Mr. van Kooten a cease and desist letter marked “personal and confidential” and alleging, among other things, defamation of TransPerfect and a breach of Mr. van Kooten’s ongoing contractual obligations not to disclose publicly TransPerfect’s confidential information. TransPerfect alleges Mr. van Kooten and TransPerfect entered into an “Independent Contractor Agreement” in 2010 and included a copy of that agreement with its cease and desist letter. So, Mr. van Kooten’s claim that he never signed an agreement with TransPerfect seems to be false. But this is no matter. This fact also seems to be moot. Let’s take these issues one at a time.
The confidentiality marking is ambiguous. It can mean that the letter is intended for Mr. van Kooten’s eyes only and that nobody at the care-of address should open or review that letter. Or it can mean TransPerfect expects that Mr. van Kooten keep the letter confidential. Or it can mean both. These two things are not mutually exclusive. TransPerfect can be considerate of Mr. van Kooten’s privacy in the face of such a legal matter and expect that he, for his part, keep the matter confidential generally.
In the United States, where TransPerfect’s general counsel is located, it is well known that, in general, cease and desist letters and, in particular, cease and desist letters marked confidential are more likely to lead to the Streisand effect than they are to suppress the conduct the cease and desist letter seeks to suppress. The people over at Techdirt.com have written about this issue in the past (see, for instance, here). And Paul Levy, a well-known free-speech attorney who pulls no punches, has published his own legal letters in response to such cease and desist letters. In one such letter from 2015, Mr. Levy explains to opposing counsel that its confidentiality notice on its cease and desist letter lacks any legal basis. He writes:
But more than [American copyright law’s not barring republication of demand letters], including such a [confidentiality and not-for-publication] claim makes it more likely that the demand will be republished, thus potentially bringing the public’s attention to the alleged defamation that your client has hired you to suppress. [at 3]
In other words: In the United States, cease and desist letters of the kind TransPerfect sent to Mr. van Kooten are likely to backfire and have the unintended consequence of increasing awareness of TransPerfect’s mishandling of its confidential client information. That’s the very definition of the Streisand effect.
The tragic irony here is that TransPerfect’s hand was not forced. It had other options, as mentioned above. Neither did it have to take action to preserve its rights under a 2010 independent contractor agreement between it and Mr. van Kooten. For even if a 2010 independent contractor agreement existed between Mr. van Kooten and TransPerfect, it would no longer be in effect. Mr. van Kooten published a screenshot from it (one has to scroll to the comments). According to this screenshot, that agreement provides as follows:
This Agreement is governed and construed by the laws of the state of New York, without regard to the conflict of law principles. This Agreement will be in full effect from the date it is signed and will remain in effect for 18 months after the Contractor’s [= Mr. van Kooten’s] last performed services for the Company [= TransPerfect], unless terminated earlier by either party with or without notice.
If it is true that Mr. van Kooten has never worked for TransPerfect, then this language shows the independent contractor agreement between him and TransPerfect ended sometime in 2012, around the time he asked to be removed from its database. Mr. van Kooten cannot be in breach of an agreement that is no longer in effect. Neither can he have “ongoing contractual obligations” under such an agreement. Nor should TransPerfect have sent him the inquiry and disclosed its confidential client information to him. TransPerfect should know when its agreements enter into and cease to be in effect. That’s basic contract management.
Apart from the defamation claims, TransPerfect’s cease and desist letter is little more than thuggery. But I’m also willing to wager that its defamation claims will prove to be unfounded and little more than thuggery as well, if this matter goes to court. In the United States, defamation claims are often, they are not always, little more than thuggery. I would hope a court will agree in this case.
In closing, I wish only to add that, if TransPerfect has entered into a nondisclosure agreement with Gameloft, TransPerfect might have breached its nondisclosure obligation(s) when it sent its inquiry to Mr. van Kooten disclosing its deal with Gameloft. If this is the case and if there is any justice in this world, Gameloft will take its business elsewhere.
While we do not know what compelled Gameloft to seek a deal with TransPerfect, we know it could not have been TransPerfect’s promises of quality translations. The quality of TransPerfect’s translations are notoriously bad. In its report of TransPerfect, TranslationReport goes so far as to say that
we must issue a strong warning for both potential clients and translators to avoid using Transperfect [sic] translations. Not only was our experience exceptionally bad in so many different areas, it appears that negative experiences are the norm here. That is why we encourage anyone considering the best translation services to look elsewhere. This is clearly not a case where our bad experience was an anomaly.
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Kommentare als Feed abonnierenThat's a very good article, Peter! Very thorough and interesting.
I'd like to clarify two points: I was wrong on one account. Indeed it seems I signed one contract with Transperfect in 2010. As it was 13 years ago, I had no memory of this, so I simply forgot. After I had dug it up, it indeed showed the expiration clause which you so beautifully cited in your article.
As for all other facts, I still have the full archive with all correspondence with Transperfect from 2008 until now. I checked and found out that I haven't done a single project for Transperfect ever. Between 2008 and 2012 I tried to negotiate a few projects, but all negotiations failed, because of impossible deadlines or ridiculously low rates. This explains why I wanted to be removed from their database in 2012.
The 1st request was sent on 5 May 2012 and ignored.
The 2nd request was sent on 21 May 2012 because they kept sending job offers. This request was also ignored.
The 3rd request was sent on 24 May 2012, again because they kept sending job offers. This request was confirmed.
From 12 March 2014 they started sending job offers again over a course of 9 years, at least 9 or 10, all including "confidential information".