Declaration of confidentiality
All of our interpreters have signed a declaration of confidentiality. Read more about confidentiality below:
Duty of confidentiality
Duty of confidentiality is a duty to keep certain information confident and to prevent any third parties from gaining access to said information. In this context, the term third parties normally includes everyone but the non-native speaker him- or herself, including family, friends, colleagues and other interpretation service providers.
The role of the interpreter and confidentiality
Internationally, it has been established that the role of the interpreter is to accurately and precisely convey the content of what is expressed in communication between individuals who do not speak the same language. This role is completely reliant on trust, and the knowledge that the presence of the interpreter as a third party does not limit the ability of the dialogue partners to have a conversation in confidence.
In the Norwegian Courts of Justice Act of 1915, Section 138 establishes that “the provisions concerning the duties and impartiality of expert witnesses shall also apply to court interpreters”. However, interpreters are not mentioned specifically anywhere in current Norwegian legislation. Statutory authority for the interpreter’s role must therefore be found in provisions concerning the professional groups to whose work the interpreter’s role is linked. These provisions must then be compared with the code of ethics that applies to interpreters.
Administrative confidentiality, as established by the provisions of the Public Administration Act, also applies to any party performing a service on behalf of an administrative agency. Pursuant to Proposition no. 3 to the Odelsting (1976–77), this also applies to expert witnesses and others who perform one-off assignments for a public agency, i.e. even interpreters. In addition, when interpreters are on assignment for a municipality, they are often made subject to confidentiality provisions established by special legislation. Furthermore, when interpreters assist health personnel, psychologists, etc., in their communication with foreign-language clients, interpreters are, in the eyes of the law, their “assistant”. As a result, interpreters are bound by the same professional secrecy that applies to the professionals they are assisting.
1. The administrative confidentiality of interpreters
In the Public Administration Act, the provisions that establish duty of confidentiality for interpreters can be found in Section 13, Subsections 1 and 3.
Section 13, Subsection 1, reads as follows:
“It is the duty of any person rendering services to, or working for, an administrative agency, to prevent others from gaining access to, or obtaining knowledge of, any matter disclosed to him in the course of his duties concerning:
1) an individual's personal affairs, or
2) technical devices and procedures, as well as operational or business matters which for competition reasons it is important to keep secret in the interests of the person whom the information concerns.”
Section 13, Subsection 3, reads:
“The duty of secrecy shall continue to apply after the person concerned has terminated his service or work. Nor may he exploit such information as is mentioned in this section in his own business activities or in service or work for others.”
These provisions from Subsection 3 have in their entirety been included in the declaration of confidentiality Noricom’s interpreters have signed, which, in practice, applies to any exploitation for personal gain of any information or contacts the person may have received or come to know during his or her activities as an interpreter.
Section 13c: (Information concerning the duty of secrecy, safekeeping of confidential information) entails that:
All documents an interpreter may have had access to for the purpose of preparing for the task or translating them orally during the session, are considered confidential, and must be stored in a satisfactory manner. Any notes the interpreter may have taken during the session must be destroyed in the presence of the parties once the session is completed, so as to prevent any suspicions that the information may leave the room. Also, the interpreter’s notes may not be used as to-do lists by either party.
The provisions of the Public Administration Act that establish that some information is exemptions from the duty of confidentiality does not apply to interpreters.
Section 13, Subsection 2, outlines information that is not included in the term personal affairs, “unless such information discloses a client relationship or other matters that must be considered personal”. In situations where an interpreter is needed, the foreign-language individual usually has a client relationship with the administrative agency. Therefore, this provision does not exclude any information from the interpreter’s duty to keep the information confidential.
Sections 13 a and b establish provisions concerning the limitation of confidentiality in administrative matters. These limitations do not apply to the interpreter’s duty of confidentiality; pursuant to the interpreter’s code of ethics, the interpreter shall not take on any other responsibilities during the session.
In other words, it is not the responsibility of the interpreter to protect the interests of the parties or to promote the interests of either party. The role of the interpreter is to interpret, thus making sure that language barriers do not impede the parties from protecting their own interests.
Section 13 a establishes limitations in the duty of confidentiality when there is no need for protection. This makes it possible for the parties to use any information received by the other, either with the consent of the other party, or when identifying characteristics have been removed, or when the information is otherwise generally known. The interpreter has not “received” the information; the interpreter simply transferred them to their actual recipient. Consequently, the interpreter cannot actively use this information or make it public without violating or harming the trust the interpreter is dependent on at all times. Therefore, the interpreter must also be careful about disclosing information that is generally known, as some may deduce that his or her knowledge of this information can be linked to his or her status as an interpreter.
The interpreter is bound by the duty of confidentiality, and must not be asked to convey information about a client’s situation from one agency to the next.
If the interpreter is presented with such a request, he or she must refer the requesting agency to the parties.
Section 13 b concerns limitations in the duty of secrecy by reason of private or public interests.
2. Interpreter confidentiality and special legislation
An interpreter will often become involved in situations that require special consideration to protect the client’s integrity. In such sessions, the interpreter will be subject to the duty of confidentiality established by special legislations, such as Section 19 of the Social Care Act and Section 4 of the Child Welfare Act. The Ministry of Social Affairs’ circular I-14/89 includes detailed information about the practical implications of this duty of confidentiality. For interpreters it is important to note that the duty of confidentiality established by social and welfare legislation includes any and all information related to natural persons. In other words, it is not limited to information about place of birth, date of birth, personal identity number, nationality, marital status, occupation or place of residence or employment, but also includes information about the person’s physical and mental health, character and emotional state.
3. The professional confidentiality of interpreters
In an international setting, the translator’s (and interpreter’s) professional confidentiality is well-established, cf. the UN/UNESCO recommendations from the Nairobi Conference in 1976.
In current Norwegian legislation, there are no provisions concerning interpretation as a profession, nor any provisions establishing a professional duty of confidentiality for interpreters. Interpretation services are provided temporarily for assignments in health care, family counselling, etc., where the interpreter assists personnel that are bound by a professional duty of confidentiality. In these situations, this duty extends to the interpreter, who is bound by the same provisions that apply to the respective professionals they assist. The most relevant of these are laid down in Section 5, Subsections 1 and 2, of the Health Personnel Act.
What these provisions have in common is that they impose a duty of confidentiality concerning information the health professional learns over the course of his or her work, including information about a person’s personal life and health. The same duty of confidentiality extends to the medical professional’s assistants, i.e. the interpreter in this case.
In reality, the list of professionals bound by this type of professional confidentiality, and whom the interpreter may come to assist, is actually much longer. See articles 4 and 5 below.
4. The duty of confidentiality and the interpreter as a witness
An interpreter can normally not be asked to give a statement or testify as a witness. Pursuant to Section 118 of the Criminal Procedure Act, the court may not, without the Ministry’s consent, receive evidence that the witness cannot give without breaching a statutory duty of secrecy that he has as a consequence of service or work for the State or a municipality, provided that the court has not ruled that such evidence shall be given even if no consent has been given. Section 119 of the Act furthermore establishes that “without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided in them in their official capacity. The same applies to subordinates and assistants who in their official capacity have acquired knowledge of anything that has been confided to the persons mentioned above. This prohibition no longer applies if the statement is needed to prevent an innocent from being punished.”
As for statements given to the police and prosecuting authority as part of an investigation, one should note that such statements cannot be given if this violates a duty of confidentiality as established by law, regulation or ordinance, cf. Section 230 of the Criminal Procedure Act. There is, however, one exception: Pursuant to Section 139 of the Penal Code, every person must, by timely warning to the proper authorities or by other means, seek to prevent criminal acts where a person’s life or well-being may be at serious risk. But, if information of this nature was revealed in the session, and the interpreter did interpret this information, it would be natural to expect the party representing the administrative agency to take action.
Pursuant to the provisions of the Criminal Procedure Act, the police are obligated to inform the witness of the exemptions from the duty to give evidence.
5. Penal sanctions against breach of confidentiality
When the interpreter signs a declaration of confidentiality, he attests to his being aware that breaching confidentiality is subject to criminal liability. From an ethical perspective, any breach is censurable. An interpreter must therefore take utmost care so that he or she does not inadvertently disclose something he or she learned in connection with an assignment. It is important to make sure that the interpreter knows that this provision applies to happy news as well as sad.
Under and pursuant to Section 121 of the Penal Code, “any person who wilfully or through gross negligence violates a duty of secrecy which, in accordance with any statutory provision or valid directive, is a consequence of his service or work for any state or municipal body, shall be liable to fines or imprisonment for a term not exceeding six months. If he commits such breach of duty for the purpose of acquiring for himself or another person an unlawful gain or if, for such a purpose he in any other way uses information that is subject to duty of secrecy, he shall be liable to imprisonment for a term not exceeding three years. This provision also applies to any breach of the duty of secrecy committed after the person concerned has concluded his service or work.”
An interpreter’s breach of professional secrecy, which covers practically everything that is said during the session, is furthermore subject to Section 144, Subsection 1, of the Penal Code, which establishes that “[c]lergymen of the Church of Norway, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives and nurses, as well as their subordinates or assistants, who unlawfully reveal secrets confided to them or their superiors in the course of duty, shall be liable to fines or imprisonment for a term not exceeding 6 months.”