When Translations Shape Legal Systems: How Misguided Translations Impact Users and Lead to Inaccurate Transposition – The Case of ‘Best Efforts’ Under Article 17 DCDSM

Abstract

This study analyses how the translations of ‘best efforts’ under Article 17 of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DCDSM) may affect transposition in Member States and impact users of online content-sharing service providers (OCSSPs). The analysis finds that ‘best efforts’ was inaccurately translated into most of the official languages in the EU Official Journal, scoring poorly especially under the terminology and outcome parameters. The investigation was based on a combination of methods, including translation quality assessment (TQA) techniques, literature review, and semi-structured interviews with legal experts in key Member States. ‘Best efforts’ is legal terminology and should be translated as such. The overall context of the original English language version of the DCDSM is also of utmost importance. The intended meaning of ‘best efforts’ is lost if the expression is interpreted as everyday language. A better strategy is to keep the ‘foreignness’ of the original expression in more ‘literal’ translations or to find equivalents in the target languages. The two words, ‘best’ and ‘efforts’, are not the only indication given by the provisions. Article 17 refers to the concepts of ‘proportionality’ (§5) and ‘cooperation’ (§§7-8 & §10) to set the context and boundaries for the interpretative framework defining the scope and breadth of ‘best efforts’. Moreover, the EU institutions have further defined these boundaries by clarifying that the ‘best efforts’ required are part of an obligation of means, limited by the obligation of result to not obstruct the limitations and exceptions of users (§7). The combination of these parameters requires that transpositions keep a fair balance between the right to intellectual property and the other fundamental rights concerned, especially freedom of expression and the right to conduct a business. Failing to do so, creates a catch 22 dilemma for OCSSPs when some Member States adopt an excessive threshold, by leaving them no other option than to block content under the obligation of means set out under Article 17(4) and breach Article 17(7)’s obligation of result to not impede users’ exceptions and limitations. This would not only impact users’ fundamental rights but also jeopardize OCSSPs’ functioning, especially hurting smaller (EU) ones. The required solutions hence go beyond amending the translated texts. For clarity’s sake and to avoid any doubt stemming from the inaccurate translations in the EU Official Journal and future impediments to the Digital Single Market, the way forward would be for the European Commission to issue the necessary corrigenda of the incorrect language versions. This should not however stop Member States from implementing ‘best efforts’ correctly, as the translation errors are manifest.