16 Feb 2016 | Art and the Law Commentary, Artistic Freedom Commentary and Reports
By Daniel McClean, a lawyer and independent curator
There are few recent legal cases involving freedom of artistic expression in the UK.
In one sense, this is to be welcomed. The UK, like other western legal systems, provides wide latitude to its protection. Freedom of artistic expression is specifically incorporated as a defence into different laws. The Obscene Publications Act (1959), for example, expressly recognizes artistic merit as a defence to the publication of otherwise obscene material.
The absence of recent cases involving artistic freedom of expression in particular as a defence in criminal prosecutions to charges of obscenity, indecency, endangering public security and hate speech might suggest that we should not be too concerned about its protection (FN1) and that the courts can be called upon if required to distinguish, for example, between artistic works featuring photographs of naked children and child pornography or between plays examining religion and racist diatribe.
Yet might not the absence of case law also suggest more perversely that artistic freedom of expression is not relied upon by artists, writers, publishers, museums, galleries and theatres and by others when it should be?
The apparent absence of cases and disputes (including cases that settle prior to trial) is symptomatic of two tendencies of which we should be concerned.
The first tendency is a lack of certainty as to what scope and weight freedom of artistic expression has within the law today.
In particular, it is unclear what role artistic expression has under the general right to free expression, i.e. as protected under Article 10 of the European Convention on Human Rights (1950) and recognized in UK law through the Human Rights Act (1998)? In the UK there have seemingly been no reported cases to date where the right to freedom of artistic expression has been relied upon by claimants or defendants in the interpretation of criminal and civil statutes or in balancing against other human rights, for example, the rights to privacy or reputation.
This contrasts with the widespread (and justified) reliance on Article 10 in cases involving press freedom and communication in the public interest. It might similarly be worthwhile, for example, for there to be a challenge to the potential constraints imposed upon artistic freedom of expression by intellectual property law or the law of privacy. Artistic freedom of expression has been tested against these rights in other jurisdictions (FN2).
In the jurisprudence of the European Court of Human Rights (ECHR), there have also been few cases where the court has had to consider artistic freedom of expression.
The case of Vereinigung Bildender Kunstler v Austria (2007)(FN3) is one of the few examples. The claimant (an artists’ association based in Austria) had exhibited in Vienna’s famous Seccession gallery, a satirical painting by the artist, Otto Muhl of the *right wing, Austrian politician, Mr Meischberger* depicted in various demeaning sexual acts with the *fascist, Austrian politician*, Jorg Haider.
The Vienna court had held that Muhl’s painting had debased Meischberger’s public standing. It awarded him damages and prohibited future exhibition of the painting. The ECHR narrowly (by 4 votes to 3) found the Austrian court’s injunction to be disproportionate to the otherwise legitimate aim of protecting ‘public morals’ and awarded the artists’ association damages. In particular, it found that Muhl’s painting should carry greater weight in the balancing exercise because it was akin to a form of political satire which commented on Mr Meischberger’s public image.
As a precedent, the ECHR’s judgment vindicates artistic freedom of expression. Yet it also has narrow application. The upshot is that artistic expression has to be closely aligned to politically orientated speech if it is to trump other rights. In particular, it leaves little clue as to what weight artistic freedom of expression might have on its own terms, placing it in a limbo somewhere between political speech and less elevated commercial speech. This is to sell freedom of artistic expression short.
John Tusa (FN4) eloquently writes that ‘the arts matter,” …. “because they are universal; because they are non-material; because they deal with daily experience in a transforming way; because they question the way we look at the world; because they offer different explanations of that world … A nation without arts would be a nation that had stopped talking to itself, stopped dreaming, and had lost interest in the past and lacked curiosity about the future.”
Tusa’s point is clear: the arts are fundamental to human autonomy and social and cultural development: a society which constrains the arts is impoverished. The arts can uniquely ask probing and troubling questions about our place in the world as the ancient Greeks were only too aware in the space they carved out for tragic theatre. In this sense, some if not many forms of artistic speech might be regarded as being of equivalent importance in their own right to forms of politically orientated speech.
Of course, not all forms of so-called artistic expression do carry weight. There are many examples of trite and meretricious expression which bears the name of art, but there is no reason why the courts cannot discriminate such instances, even if this may not always be straightforward. After all, judgments about political speech also involve judgments of value. In the case of Leroy v France (2008)(FN4), the ECHR upheld the conviction by the French authorities of the claimant, a cartoonist, of the crime of apologizing for terrorism after he depicted a cartoon in the aftermath of 9/11, showing the twin towers collapsing in the terrorist attack with the caption, ‘We have all dreamed of this. Hamas has done it’. There is no reason why simple hate/offensive speech such as this should be given greater weight as artistic expression because it is framed within the context of a cartoon – even if we might disagree with the punishment afforded by the French authorities.
The second tendency is a pattern towards self-censorship that can be discerned particularly on the part of publishers and institutions to avoid communicating subject matter that carries the risk of being deemed offensive and ‘politically incorrect’ whether this subject matter is unlawful or not.
Self-censorship in this form can be exercised at two stages. The first stage is avoiding communicating such subject matter at all. It is difficult to measure such acts of self- censorship, but there is a good reason to believe these acts are becoming increasingly common as Index on Censorship uncovered in Taking the Offensive.
The second stage (which I consider here) is unnecessarily removing controversial and provocative artistic subject matter from public view (for example, abandoning a play or taking an artwork down from exhibit in a public gallery) when challenged to do so, including by the police authorities.
The Tate’s removal of Richard Prince’s iconic ‘Spiritual America’ (1983) from the exhibition ‘Pop Life’ when challenged by the UK’s Obscene Publications Unit in 2007 is a powerful example of this second type of self-censorship.
Prince’s work is an ironic appropriation (as reflected in the work’s title) of a photographic image featuring the pre-pubescent actress Brooke Shields then aged twelve which had remarkably been published earlier in Playboy magazine. Prince’s work comments on the type of society and culture in which this type of image might be made as well as on Brooke Shield’s sexualized role as child actress. Prince’s work as well as being easily available on the Internet had been widely exhibited across the world, including in prestigious venues such as the Guggenheim, New York.
Following a complaint by The Daily Mail, the Tate’s trustees had been threatened with criminal prosecution under the UK’s Protection of Children Act (1978) for exhibiting an indecent image of a child – if Prince’s work was not removed from view. They were understandably afraid –a fear compounded by conservative and misguided legal advice they had received – and complied. Yet, if the Tate’s trustees had been prosecuted under the Act, which if submitted is unlikely (FN5), it would have been able to have rely upon the ‘legitimate reason’ defence – a defence made credible by the critical and institutional reception of Prince’s work within the art world.
At the moment we stand at a crossroads in the arts where creators and institutions are uncertain of their legal rights and oppressed by the desire to avoid giving offence and breaching taboos. What is to be done?
I wish to give the example of the Photographer’s Gallery (London) decision to mount an exhibition of the photographs of the internationally renowned artist, Sally Mann, in 2010 as an illustration of the positive steps that institutions can take to confront the specter of censorship, with the help of appropriately inclined lawyers.
In 2010, the Photographer’s Gallery decided to mount an exhibition of Sally Mann’s beautiful black and white photographs ‘The Family and the Land’. Sally Mann’s exhibition included a selection of photographs taken of her children naked while playing in the landscape and in a pond in the garden of the family home. Mann is a serious international artist (like Prince) whose work has been widely exhibited and critically acclaimed. Unlike Prince’s appropriated image of the naked Brooke Shields, Mann’s photographs cannot be accurately described as being prurient.
Given the strength of the social taboo against child nudity and the Tate incident in 2007, both Mann and the Photographer’s Gallery were concerned about the potential legal implications if the exhibition were to go ahead.
The advice that my law firm to the Photographer’s Gallery was robust, though not entirely risk free. It said, in essence, that even in the unlikely event a prosecution was to be brought against the artist and gallery under the Protection of Children Act 1978, for exhibiting ‘indecent’ images of children, there would be strong grounds for resisting this prosecution under the ‘legitimate reason’ defence, including Mann’s standing as an artist and the critical reception of her work, including photographs of her children.
In the event, the exhibition was mounted and not a whiff of complaint was heard from the police authorities or even the national press.
Exhibitions like Sally Mann’s at the Photographer’s Gallery are important because they create cultural precedents. They show what can be done when creators and institutions act with courage, but also receive robust legal advice. Importantly, they enable others to build upon their actions as precedents in the future.
In contrast to Art, the Law is often represented as being black and white. Yet as lawyers know all too well, the Law is also replete with grey areas of interpretation. Like Art, the Law is not fixed, but is shaped through contestation and discussion. If the scope of artistic freedom of expression is to be protected and enlarged today, it urgently requires that its contours are debated and challenged.
16 Feb 2016 | Art and the Law Commentary, Artistic Freedom Commentary and Reports
Policing is a core function of the state, and it has long been accepted that our taxes pay for police services. The role of the police naturally shifts with changes in culture and the law, but the current position is that the police, as a public authority, have an obligation to ensure law and order and to preserve, and in some cases to promote, fundamental rights such as the right to protest and the right to freedom of expression, protected by Articles 10 and 11 of the European Convention on Human Rights, now incorporated into the UK’s domestic law as the Human Rights Act 1998.
There are some instances where the police are entitled to levy an additional charge for their services, but those must be services which are outside the core responsibilities of the police.
Section 25 of the Police Act 1996 deals with the “provision of special services” and states that:
The chief officer of police of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area for which the force is maintained, subject to the payment to the police authority of charges on such scales as may be determined by that authority.
The phrase special police services is not defined by the act. Association of Chief Police Officers (ACPO) guidance to senior police officers states:
“an event is an occurrence, out of the normal activity that takes place to provide an experience or defined activity to commercial or non-commercial reasons. Special police services are police services provided over and above core policing at the request of a person or organisation.”
Case law indicates that special police services include policing football matches (Chief Constable of Greater Manchester v Wigan Athletic AFC Ltd [2008] EWCA Civ 1449) and music festivals (Reading Festival Ltd v West Yorkshire Police Authority [2006] EWCA Civ 524).
The reason why football matches and music festivals might need additional policing is because of the risk of public order offences being committed and because the organisers themselves require additional police to ensure that they can discharge their own duties to keep the attendees safe. Where the police have provided services over and above those that have been specifically requested, organisers have not been required to pay.
ACPO guidance draws a clear distinction between different categories of event:
• Commercial events intended to generate private profit;
• Non-commercial events i.e. charitable or community events; and
• Statutory events reflecting constitutional rights or processes.
It provides that: “Policing of statutory events is part of a core activity and no charges should be made” and defines statutory events as “events where there is no financial gain to the organiser and which reflect constitutional rights, or a cause of royal, national or defined public interest”.
As a public body, the police must act within their powers and discharge duties to which they are subject. They must take decisions rationally, fairly and in a way which takes account of relevant – but not irrelevant – considerations. Cultural organisations have a legitimate expectation that the police will follow published guidance unless there is a good reason to depart from it. However, this guidance should be clear, especially where it potentially interferes with fundamental rights. At present, this guidance lacks clarity and therefore policy practice in this area may lack consistency. This is an area which could potentially be subject to challenge by way of judicial review.
As it is presently constituted, the guidance suggests that the real dividing line is between commercial and non-commercial events. In situations where fundamental rights are engaged, such as the staging of a highly controversial art exhibition where protests are expected, it is certainly arguable that policing is a core function notwithstanding that it is a commercial event.
The police may have felt they could waive the fee they originally requested in relation to the 2004 production of Behud because the theatre was a not-for-profit organisation. However, there may be situations where a theatre or exhibition space is a commercial organisation, but the work of art in question raises issues of artistic and political freedom of expression. For instance, under the guidance, the police could have charged the Birmingham Repertory Theatre at what appears to be the going rate of £10,000 per day for policing Behtzi had it not been cancelled.
Using the distinction between commercial and non-commercial events as a lodestone for determining whether or not the police can charge for special services is thus not necessarily appropriate. Attendance at football matches or music festivals does not, on the face of it, involve the exercise of fundamental rights. The situation in respect of all theatre, art exhibitions or other forms of artistic expression, even where a profit is made, is quite different. The police have an obligation to fulfil their core duties – those are now enhanced by their duties under the Human Rights Act not to act incompatibly with the Convention. The Convention imposes a qualified obligation not to interfere with the exercise of the right to freedom of expression and protest and a positive obligation to take appropriate steps to protect those rights. The policing of artistic expression, where political sensitivity leads to the risk of public order issues, is part of the police’s core function and duties and should not be a matter of commercial negotiation. Protection for these rights should under no circumstances depend on whether or not an organisation can afford to pay for it.
16 Feb 2016 | Art and the Law Commentary, Artistic Freedom Commentary and Reports
In the United States, Australia and Britain a handful of art museums and galleries have come under scrutiny for displaying photographs of children.
Work by photographers such as Nan Goldin, Bill Henson and Sally Mann depicting children expressing a bodily awareness have provoked a reoccurring debate cast in two competing concerns. Voices generally sympathetic to the arts community defend the fundamental right of freedom of artistic expression and emphasise that children are able to give consent. Those calling for institutions to censor art accuse artists of perpetuating the sexualisation of children and ‘playing into the hands’ of paedophiles.
A more critical dialogue on the ethics of exhibiting photographs of young people’s bodies has been hard to find in these debates. The issues are bound up in the display of their image are addressed only during crises of controversy and too often presented as mutually exclusive, while voices of now-adult models remain profoundly absent.
Among the handful of models that have voiced their opinions in media, Sally Mann’s daughter spoke of her experiences as “teaching her the power of art” and inspiring her own career as an artist. Despite the media’s efforts, the now adult models of Bill Henson reflect on their collaboration with the artist as “empowering“. It seems that within circumstances that prioritise the needs and interests of the child, young people can experience an active engagement in art that is inspiring.
Yet not every parent or artist prioritises the best interests of the child when encouraging them to model, making this a particularly difficult ethical territory for museums to negotiate. An inherent power imbalance between parents and/or artists and young people allows some to pursue self-goals over the well-being of the child.
Adolescence is a time in which young people develop their identity, sexuality and thinking in adult-like ways, *while still remaining vulnerable and sensitive to expectations of adults* but also during which they have particular vulnerabilities and remain sensitive to expectations and coercion of adults. A young person might not see the implications of posing in certain ways as problematic until growing into adulthood. *I’d suggest making a new graph here*Consent is fluid and changeable because a person’s feelings may change according to the embodied experiences of adolescence. The meanings a photograph might evoke in other viewers might not become evident until later in life. In addition, photographs are mutable and can be read in very different ways that are temporally and culturally contingent.
In 2010, Vanity Fair published an article that exposed the emotional damage caused by Pop Art pioneer Larry Rivers on his two daughters by filming them naked during their early teens. Rivers made tapes of Emma and her older sister Gwynne on different occasions during the late 70s, “sometimes just with their breasts exposed, sometimes naked, as their father asked them questions about their bodies and budding sexuality“. Although film is inherently different from photography, it shares similarities in this context in that it is expected to show a supposed reality, the true image of a person. One of his daughters later said the film, Growing, contributed to the eating disorder and mental health problems she experienced during her adolescence and adulthood. Despite requests to have the tape destroyed, the archive’s keepers of The Larry Rivers Foundation have decided to keep the film behind closed doors in his daughter’s lifetime, but insist the collection should be kept for the sake of art.
Emma’s account embodies the idea that there is something predatory about the act of taking a photograph, as Susan Sontag asserted in On Photography. Photographs can blur the boundaries between reality and fiction and assert control over their subject, by turning a person into an object that can be possessed. River’s daughter is one of few who has attempted to gain back control over her image and ultimately failed to do so. Although the embargo on the video is partial, it does not grant her control.
Consent is negotiated and defined at the site of construction of the artwork by the relationships between the artist, parents and the autonomy of the child, but cultural institutions play a role by collecting, giving access to, exhibiting and publicising images. A museum grants the image a status inside the realm of art, but also brings work such as Larry River’s from the private into the public sphere. Outside the contemplated context of a gallery or archive, there is little space to negotiate the terms at which a photograph is used. Without any right of ownership of images of themselves, can a young person truly give lifelong informed consent for their image to be used?
No research exists that can enrich this discussion and more significantly bring to light how young people and adults reflect on their experiences. Moreover, a more open and interdisciplinary dialogue between lawyers, children rights advocates, medical ethicists, police, artists and museums is needed to equip institutions with the knowledge to encourage more informed and transparent decision-making and at the same time safeguard themselves against both censorship and self-censorship. A helpful way forward might take the shape of a more dynamic museum ethics discourse that appreciates the complexities of the context in which photographs are made and is rooted in an ethic of care towards the child on display.
Ceciel Brouwer is a young academic doing a PhD at the School of Museum Studies in Leicester. Her research explores how museums negotiate the ethical issues involved in collecting, interpreting and displaying photographs of children that express a bodily awareness. She became interested in ethics, consent and representations of young people when reflecting on the impact of her own experiences as a child participant in medical research and treatment. Her research is funded by the AHRC and Midlands3Cities.
12 Jan 2016 | Americas, Cuba, mobile, News and features
August 2015: opening of the Cuban Film Posters exhibition Soy Cuba as part of World Cinema Amsterdam. Credit: Shutterstock / Cloud Mine Amsterdam
“[T]he fault of many of our intellectuals and artists is to be found in their ‘original sin’: they are not authentically revolutionary.”
— Che Guevara, Man and Socialism in Cuba, 1965
Last year was a good one for Cuban artists. With renewed diplomatic relations with the US, a boom in Latin American art and Cuba’s exceptional artistic talent — fostered through institutions such as the Instituto Superior de Arte in Havana — works by prominent Cuban artists fetched top dollar at international auctions, and the Cuban film industry was firmly in the international spotlight.
While the end of the embargo brought with it hope for political liberalisation on the island, as with previous periods of promise in Cuban history cases of repression and censorship of dissident artists were rife in 2015.
So let’s begin again: Last year was a good one for Cuban artists who adhere to the country’s long-established revolutionary narrative and don’t embarrass the regime.
The fear of censorship for art that is critical of the government has been fostered through decades of laws and repression that limit freedom of expression. This can mean stigmatisation, the loss of employment and even imprisonment. Charges such as “social dangerousness” and insulting national symbols are so vague they make convictions very easy.
“Artists are among the most privileged people in Cuban society — they make money in hard currency, travel, have frequent interaction with foreigners and they don’t have boring jobs,” explains Coco Fusco, a Cuban-American artist, 2016 Index Freedom of Expression Awards nominee and author of Dangerous Moves: Performance and Politics in Cuba. “Artists function as a window display in Cuba; proof of the success of the system.”
But if an artist engages in political confrontations, they can draw unwanted attention, says Fusco.
One artist accused of doing just that is critically-acclaimed Cuban director and fellow nominee for this year’s Index Awards Juan Carlos Cremata. In 2015, he staged a production of Eugene Ionesco’s Exit the King, about an ageing ruler who refuses to give up power. The play lasted two performances before being shut down by the National Council of Theatre Arts and the Centre for Theatre in Havana.
“Exit the King was banned because according to the minister of culture and the secret police we were mocking Fidel Castro,” Cremata told Index on Censorship. “This wasn’t really true; what they fear is real revolutionary speech in theatre.”
When he spoke out against the move, Cuban authorities terminated his theatre contract, effectively dissolving his company, El Ingenio.
Cremata, whose career spans three decades, confesses the shutting down of Exit the King took him by surprise. “We are living in the 21st century, and according to the official propaganda, Cuba is changing and people can talk about anything,” he says. “This, as it turns out, is a big lie by people who are still dreaming of the revolution.”
“With their censorship, they show how stupid, retrograde and archaic their politics are,” he says.
As so much funding for artists comes from the state, non-conformist artists often find themselves in difficult financial situations. “I’ve had to reinvent my life,” Cremata says. “I’m trying to receive some help from friends who offer to work with me for free, but this will not be eternal, as they have families.”
Cremata himself has an adopted daughter and has her future to think about. “I truly believe life will change and better times will come with or without their approval, but it is very, very hard.”
Art has always been at the centre of Cuban culture, but under Fidel Castro it became a tool for spreading socialist ideas and censorship a tool for tackling dissent. Evidently, Cuba isn’t entirely post-Fidel, explains Fusco. “Fidel is still alive, his brother is in charge and his dynasty is firmly ensconced in the power, with sons, nieces and nephews in key positions,” she says. “Although I don’t think anyone over the age of 10 in Cuba believes the rhetoric anymore.”
Very few may believe the rhetoric, but going against it can still land you in prison, as was the case with Index Awards nominee Danilo Maldonado, the graffiti artist also known as El Sexto. Maldonado organised a performance called Animal Farm for Christmas 2014, where he intended to release two pigs with the names of Raúl and Fidel Castro painted on them. He was arrested on his way to carry out the performance and spent 10 months in prison without trial.
International human rights organisations condemned his imprisonment — during which he was on a month-long hunger strike — as an attack on freedom of expression.
The prospect for improving political freedoms doesn’t look good, and anyone who expected any different due to Cuba’s normalisation of relations with the US is naive, says Fusco.
“Washington is not promoting policy changes to improve human rights,” she says. “Washington is promoting policy changes to 1. develop better ways to exert political influence in Cuba; 2. to revise immigration policies and control the steep increase in Cuban illegal migration to the US; 3. to give US businesses and investment opportunity that they need (particularly agribusiness); 4. to avoid a tumultuous transition at the end of Raul Castro’s term in power that would produce more regional instability (i.e. the US does not want another Iraq, Libya or Syria).”
Even within Cuba there is an absence of discussion about civil liberties, strong voices of criticism of state controls and collective artist-based efforts to promote liberalisation.
“Artists are generally afraid to mingle with dissidents,” says Fusco. “There are a few bloggers who post stories about confrontations with police and political prisoners, a few older human rights activists who collect information about detentions and prison conditions, a handful of opposition groups who advocate for political reforms, but they have virtually no influence on the government.”
In the past, Cuban authorities used the US embargo as an excuse to justify restrictions on freedom of expression. Now that the excuses are running out, it is time for the Cuban government allow its dissidents the same freedoms as its conformists.
Ryan McChrystal is the assistant editor, online at Index on Censorship
