Comment by nabla9 | Hacker News Reader

Comment by nabla9 | Hacker News Reader

Parent Full thread

Civil law systems have "The abuse of rights principle". It means that legal right can't be used in the purpose of _only_ causing annoyance, harm, or injury to another or violating or invalidating the rights.

In the EU the principle is codified in the article 17 of the European Convention on Human Rights and in the Charter of Fundamental Rights of the European Union. They both prohibit the use of rights in a way that they nullify or weaken the rights provided by the agreements.

The principle also exists in the European contract law and property law. You can't use the property rights for the sole purpose of causing annoyance or violating other rights.

---

https://definitions.uslegal.com/a/abuse-of-rights/

At least one of four conditions is required to invoke the doctrine:

(1) the predominant motive for exercising the right is to cause harm;

(2) no serious or legitimate motive exists for exercising the right;

(3) the exercise of the right is against moral rules, good faith, or elementary fairness; or

(4) the right is exercised for a purpose other than that for which it was granted.

---

edit: In the common law systems it can exist under names like "nuisance, duress, good faith, economic waste, public policy, misuse of copyright and patent rights, lack of business purpose in tax law, extortion, and others" see: Abuse of Rights: A Pervasive Legal Concept https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=17...

Canada uses the common law system (with the exception of provincial courts in Quebec), but our constitutional rights are granted only up to "reasonable limits", which gives courts a lot of room to allow legislation which nominally infringes on one of those rights but which might have an overall positive effect on the exercise of others.

This seems like it would be very difficult to litigate. How do you ascertain the "predominant motive"? How do you define "serious or legitimate"? To whom? If a Muslim woman wants to wear a head-covering (or a Christian wearing a cross necklace) in a French school, it's probably very serious and legitimate to her, but perhaps not to a tribunal of secularists. There aren't any silver bullets for the issue of speech freedoms.

In many important cases it's not too difficult. You look at the evidence and make the ruling. Finnish Supreme Court made precedent about banning fascist organization.

Here is summary in English https://korkeinoikeus.fi/en/index/ennakkopaatokset/shortsumm...

>Moreover, the Supreme Court noted that to invoke the freedom of association or the freedom of speech in order to disrupt parliamentary democracy, to promote national socialism as an ideology, or to justify the defamation or demeaning of an ethnic group was an abuse of these rights, as the objective was to cancel democratic government or to materially undermine other fundamental rights and human rights. Accordingly, the objectives and the activities of the association were not to be afforded the protection of the freedoms of association or of speech.

I wonder if that may be intentional so that when people to litigate it, it's going to be pretty obvious and leave very little room for doubt.

Generally ambiguity leaves more, not less room for doubt, but IANAL.

Agreed but my point was that in order for such a lawsuit to succeed, it must clear such a hurdle that it leaves little room for anyone to doubt the justifications. IANAL as well so this is just me wondering and hoping someone who's more knowledgable can give some insights.

Europe has a much longer and more recent history of censorship than does the United States.

Currently it’s against the law in Germany to insult the leader of a foreign country. Some (many?) have laws against flag burning. Religious restrictions were common in some countries within the lifetimes of the current generation.

I’m not even talking about the ex-Communist countries.

Europeans simply don’t place the same emphasis on freedom of speech as Americans.

>(3) the exercise of the right is against moral rules, good faith, or elementary fairness

Galilei was almost burned for this.

Yes, he was almost burned and a lot of other things we think as absurd were legal then. (though there seems to be some debate about the circumstances - not endorsing the link https://newsroom.ucla.edu/releases/the-truth-about-galileo-a... )

It's a good think the current "defenders of free-speech" don't align themselves to a klepto-theocracy otherwise we'd think they'd be up to something...

Reply on news.ycombinator.com