By Paul Bakker
Technical communicators can be affected by the law in several ways, a few of which are discussed briefly in this note. To some extent, what affects you will depend on whether you are employed or work as a self-employed person. All these areas of law are complex and you should not rely exclusively on the information in this necessarily general overview.
Over the years, I’ve been asked many times by communicators if they could personally face prosecution for writing a user guide that leads to a user being injured. That’s highly unlikely unless you had been wilfully negligent: “I really couldn’t care less if my instructions lead to someone being seriously injured or even killed”.
This is the area of law that is concerned with the standards that products and services have to meet to allow them to be sold in particular markets such as the EU/EEA or the United States. There are thousands of such regulations and many specify the instructions that must accompany certain types of products and services, such as the EU Machinery Safety Directive.
In most jurisdictions, individuals and organisations owe legal duties to anyone who may be affected by the reasonably foreseeable consequences of their actions or failures to act. However, one of the problems in negligence is that conduct and intent are relevant — which can make it tricky for an injured person to successfully sue the manufacturer of the product that is claimed to have caused injury.
Product liability law
Difficulties for injured people in holding major manufacturers to account gradually led to the development of product liability law in most Western jurisdictions, especially the US and EU/EEA. In a nutshell, product liability law says that a product is legally (even though not necessarily technically) “defective” when it does not provide the safety that a user is reasonably entitled to expect. Negligence does not need to be proved: all a claimant has to show is the defective product, the injury and the causal link between the two. This is known as “strict liability”. Instructions for use are usually considered by the Courts as part of the product they accompany, so poor instructions can make a technically sound product “defective” in a legal sense; for example, by describing how it may be used in unintended ways.
This is especially relevant to technical communicators who offer their specialist services to organisations. The more you claim to a client that you have special expertise in technical communication — and the more that a client relies on such claims — the more exposed you will be for an action for professional negligence if your advice proves to be wrong. That can be very expensive and is often worth insuring against.
Few technical communicators need to be reminded about how the laws of copyright restrict their ability to “lift” the work of others without consent. What many do not know is that when a freelance technical communicator creates material for a paying client, the copyright remain with the technical communicator unless the agreement between the two parties specifically provides otherwise. This can provide a valuable protection for a freelance technical communicator by specifically assigning the copyright in the material created to the client only once it has been paid for in full.
About the author
Paul Bakker has worked as a technical communicator for 30 years. He studied electronic engineering and English, followed by an MBA at the London Business School. After periods at two technical publications contractors, he started the specialist consultancy Peterborough Technical Communication. His particular area of expertise is the interface between technical documentation and product liability, advising companies and acting as an expert witness in legal proceedings.
Paul also teaches at two universities and trains within many companies. He is a former Vice-President of the Institute of Scientific and Technical Communicators.
31 March 2015
Updated 8 April 2015