23. June 2014
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There is an important distinction between an event that takes place biannually and one that takes place biennially. Linguistically speaking, there is only a very fine distinction between the terms “contract of service” and “contract for service”. Yet legally speaking, these two contracts contain very different rights and obligations.
When it comes to legal translation, it is extremely important to place overwhelming emphasis on accuracy. The mistaken translation of a company name, for example, can lead to the company losing a lawsuit (and possibly thousands, if not millions of euros) simply because in the eyes of the court, it does not exist.
In many cases concerning the translation of legal documents translation dictionaries and online translation software reach the edges of their intellectual capacity. As a result, obtaining the services of a legal translator who has a thorough knowledge of the local legal system is indispensable.
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Translation example: grappling with meanings
The legal difficulties presented by a German to English translation task can be poignantly demonstrated with the word “Störerhaftung”.
A quick peek in a German to English legal dictionary yields the result “disturbance liability” or “interference liability”, yet a native speaker may instinctively raise an eyebrow and lean back in brief contemplation of what the legal consequences of “interference liability” are.
The way in which the term “Störerhaftung” should be interpreted and translated will often differ depending on the client. The difficulty with providing a translation here, however, is that even the German courts and legal professionals dispute how the principles behind the term should be applied.
In Germany, the term Störerhaftung describes liability for having created a source of danger and failing to prevent or limit the danger from causing harm. This form of liability is most notably and perhaps most notoriously pleaded by copyright holders in file sharing cases in relation to alleged copyright infringements.
a. Strict liability
In the past, copyright holders have argued that internet connection owners should be liable under any circumstances and regardless of fault for any misuse of their internet connection.
In this sense, Störerhaftung resembles something like strict liability and depending on the context and the client’s point of view, such an interpretation may be acceptable. Yet it does seem to stretch the definition given to the term by Germany’s Federal Court of Justice (Bundesgerichtshof, BGH).
b. Court definition
1. be neither perpetrator nor participant in the alleged copyright infringement;
2. have contributed in some intentional and sufficiently causal manner to the violation of the rights of another; and
3. have breached a duty of care – more specifically: the failure to monitor the connection or instruct persons using the connection
Indeed, while a sense of strict liability is inherent in Störerhaftung, it is not the action of creating an internet connection in itself that is the wrong committed. Instead, it is the failure to properly secure the internet connection, to monitor use of the connection, or to instruct persons using the connection in relation to file sharing and copyright infringements. In other words it is the breach of a duty of care.
c. Breach of duty of care
Under the term Störerhaftung, an internet connection owner who fails to take necessary precautions to prevent or make copyright infringements more difficult breaches a duty of care imposed on them by law. The term Störerhaftung could therefore be translated with the term “breach of duty of care”.
It is often the case that connection owners are found to have acted negligently in failing to uphold their duty of care. The term “negligence” could therefore also be included in a translation; yet negligence does not fit perfectly in a legal sense, as liability in negligence usually requires the damage to be reasonably foreseeable and for it to be fair, just and reasonable to impose liability. These elements are not required by Störerhaftung.
d. Secondary liability
Some translators may lean towards the term secondary liability and its sub-theme, contributory liability, to translate the term Störerhaftung. This principle involves a contributory act to the direct infringement committed by a third person and knowledge that the third person is committing an infringement.
Yet, this translation may also be misguided as the term Störerhaftung lacks the requirement for knowledge. In file sharing cases, connection owners are required to take precautions whether or not they knew at the time that a third party was committing the infringement.
Deciding on balance
It can be seen that varying interpretations result in different consequences. Indeed, any initial thought that Störerhaftung would be comparable to tortious interference, which concerns the interference with the contractual or business relationships of another, would be misguided.
The core issue in Störerhaftung is a breach of duty of care. It seems therefore that on balance this translation best reflects the obligations incumbent on connection owners. For clarity, one could also consider placing the German term in brackets behind the translation.
Ultimately, the choice of words will vary depending on the context and the client’s wishes. In such cases close contact with the client is extremely important and it may be worthwhile asking the client with which solution they feel most comfortable.
While it is clear that offering the natural meanings of words as a translation may suffice for lay readers, translating legal principles and consequences is more difficult and requires expert knowledge.
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At WILDE BEUGER SOLMECKE, our legal translation team fosters close ties with clients to ensure their needs and expectations are met. An acute awareness of the legal significance of translated documents and placing value on precision and efficiency ensure that our clients benefit from legal certainty. For more information on our translation services call us on +49 (0) 221 / 951 563 0 or use our contact form.
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