Freedom of expression is essential to the arts. But the laws and practices that protect and nurture free expression are often poorly understood both by practitioners and by those enforcing the law. The law itself is often contradictory, and even the rights that underpin the laws are fraught with qualifications that can potentially undermine artistic free expression.
As indicated in these packs, and illustrated by the online case studies – available at indexoncensorship.org/artandoffence – there is scope to develop greater understanding of the ways in which artists and arts organisations can navigate the complexity of the law, and when and how to work with the police. We aim to put into context the constraints implicit in the European Convention on Human Rights and so address unnecessary censorship and self-censorship.
Censorship of the arts in the UK results from a wide range of competing interests – public safety and public order, religious sensibilities and corporate interests. All too often these constraints are imposed without clear guidance or legal basis.
These law packs are the result of an earlier study by Index, Taking the Offensive, which showed how selfcensorship manifests itself in arts organisations and institutions. The causes of self-censorship ranged from the fear of causing offence, losing financial support, hostile public reaction or media storm, police intervention, prejudice, managing diversity and the impact of risk aversion. Many participants in our study said that a lack of knowledge around legal limits contributed to self-censorship.
These packs are intended to tackle that lack of knowledge. We intend them as “living” documents, to be enhanced and developed in partnership with
arts groups so that artistic freedom is nurtured and nourished.
Jodie Ginsberg, chief executive, Index on Censorship
Forward by Xenofon Kavvadias
We are only as free as the law allows us to be.
In post-World War II Western societies, the welfare state, prosperity, stability, social equality and liberty were the main pillars of a liberal democracy. They were proposed to the population in opposition to totalitarian regimes. With the demise of the totalitarian threat, these pillars are fast eroding, giving way to a new world of austerity, severe inequality, dismantling of the welfare state, of war on terror, surveillance, and market fundamentalism.
Against this backdrop, counter-terrorism legislation creates an all-encompassing criminalisation. This implicates a huge number of possible offenders from across many ideologies that it would be impossible and unacceptable to bring to justice. It allows for the arbitrary implementation of the law, focusing on the current foe, while maximising generalised control and stifling dissent.
For me, the sorry state of civil liberties in general and the counter-terrorism legislation in particular, acts as an absolute incentive to adopt the unique role of the artist as an informal, independent and privileged agent of social change and moderator of state power. In this role, my quest for an understanding of freedom blurs my identity as an artist and I become journalist, activist, law-researcher, historian, politician. Freedom becomes both the subject and the goal of the work.
Artists are no more innocent or impartial than the rest of the population in the struggle between freedom and control. Working on issues of freedom
of expression for me means trying to identify the precise point where speech becomes criminalised. If I prepare thoroughly, stay open and honest and take just the right amount of risk, I believe the work will shine light on the state of civil liberties and I will avoid legal problems. I don’t want to be prosecuted, but I do want to know exactly what I have to do to avoid being prosecuted. I don’t try and claim any sort of artistic license. I believe in what I am doing and I am prepared and able to defend it.
Xenofon Kavvadias is a fine artist working in London
Freedom of expression
Freedom of expression is a UK common law right, and a right enshrined and protected in UK law by the Human Rights Act*, which incorporates the
European Convention on Human Rights into UK law.
*(At the time of writing (June 2015), the government is considering abolishing the Human Rights Act and introducing a British Bill of Rights. Free expression rights remain protected by UK common law, but it is unclear to what extent more recent developments in the law based on Article 10 would still apply.)
The most important of the Convention’s protections in this context is Article 10.
ARTICLE 10, EUROPEAN CONVENTION ON HUMAN RIGHTS1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is worth noting that freedom of expression, as outlined in Article 10, is a qualified right, meaning the right must be balanced against other rights.
Where an artistic work presents ideas that are controversial or shocking, the courts have made it clear that freedom of expression protections still apply.
As Sir Stephen Sedley, a former Court of Appeal judge, explained: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.” (Redmond-Bate v Director of Public Prosecutions, 1999).
Thus to a certain extent, artists and galleries can rely on their right to freedom of expression under Article 10 of the European Convention on Human Rights: the right to receive and impart opinions, information and ideas, including those which shock, disturb and offend.
As is seen above, freedom of expression is not an absolute right and can be limited by other rights and considerations. While the Crown Prosecution Service (CPS) and police have a positive obligation to promote the right to freedom of expression, they also have a duty to protect other rights: to private and family life, the right to protection of health and morals and the protection of reputation.
They also have the a duty to protect the rights of the child, meaning the right to freedom of expression may be subject to legal restrictions necessary to protect the rights of children. Artists and galleries who make or display works using children that could be considered obscene or indecent, should consider the ways in which the works advance the public interest and prepare well, so as to be in a position to defend their work and show that the rights of the children involved have been considered.
The following sections of the pack look at one element of the law that may be used to curtail free expression: counter-terror legislation.
Counter-terrorism offences explained
Counter-terrorism is a complex and controversial area of the law, not least because the offences are often very widely drafted. The relevant legal
definition of terrorism, contained within the Terrorism Act 2000 (and further extended in 2006), is very broad and potentially covers a very wide range of acts beyond those that are widely understood to be “terrorist” in nature. Artists, and the staff and directors of arts organisations, commit a criminal offence if publications in any medium, including images, which are likely to directly or indirectly encourage terrorism, are shown or displayed. The dissemination of any publication containing such a statement or image is also an offence.
The UK laws applicable to arts organisations and artists include:
• The Terrorism Act 2006 (TA 2006) which creates the offence of publishing (or causing to be published) a statement directly or indirectly encouraging or otherwise inducing terrorism or disseminating a publication containing such a statement. For the purpose of these offences, indirect encouragement includes the glorification of terrorism now or in the past. http://www.legislation.gov.uk/ukpga/2006/11/contents
Not only are the definitions of terrorism broad and wide-ranging, but terrorism offences are themselves often vague and unclear. This complexity and lack of clarity can lead to the subjective and inconsistent application of the law, which in turn can have a chilling effect on freedom of expression. In most instances involving the professional arts sector, a successful prosecution is unlikely, particularly because a prosecution cannot be brought without the consent of the director of public prosecutions (DPP). To date, no artist has been convicted under counter-terrorism legislation.
Under Section 1 of the Terrorism Act 2006, it is a criminal offence to either publish a statement or disseminate a publication that is “likely to be
understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism”.
In general terms, the “statement offence” catches those who are responsible for publishing prohibited statements, whereas the “dissemination offence” catches those who further disseminate such material. Both offences are punishable by up to seven years imprisonment.
The work in question may be seized (for more information, see below: The powers of the police and prosecuting authorities), and the directors and senior and decision-making staff of the arts organisation and the artist may risk arrest and/or prosecution.
“Statement” covers a communication of any description, including a communication without words, consisting of sounds or images, or both. Similarly, a “publication” can be in any form, and may include visual images without any accompanying text.
The act makes it clear that indirect encouragement includes “glorification”, which is defined “as including any form of praise or celebration” of acts of terrorism, provided the members of the public could reasonably be expected to infer that “what is being glorified is being glorified as conduct that should be emulated by them”. This applies both to glorification now or glorification of what has happened the past. It is not relevant whether any person was in fact encouraged or induced by the statement to commit a terrorist act and it is not necessary that this was even a likely consequence of the “publication”.
PROSCRIBED ORGANISATIONSStatements, documents or artworks in support of proscribed organisations can attract investigation and charges. The secretary of state may make an order (adding or removing) a group from the “proscribed” list in Schedule 2 to the Terrorism Act 2000. Such orders require the approval of both Houses of Parliament. A group can only be proscribed if the secretary of state believes it is “concerned in terrorism” pursuant to the definition of terrorism provided by the act. A group is concerned in terrorism if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism, or is otherwise concerned in terrorism.
Similarly, it is not necessary to intend to encourage or otherwise induce members of the public. Recklessness is sufficient. However, where the
offence is committed recklessly, it is a defence to show that the statement or publication in question did not express the defendant’s views and did not have his/her endorsement, and this was clear in all the circumstances of the case, including the way in which the statement was presented.
The motivation of the artist or arts organisation is relevant in relation to the available defences. Providing the offence has been committed recklessly (rather than with an intention to encourage terrorism), it is a defence to show that the statement or publication in question did not express the artist’s or arts organisation’s views and did not have his/her/their endorsement, and this was clear in all the circumstances.
If you are to defend successfully your position and exhibit works that are controversial but do not fall foul of the provisions of the Terrorism Act 2006, you need to recognise this potential problem in advance. Take clear steps to contextualise the works and be ready to demonstrate why they should not be treated as encouraging or glorifying terrorism.
The offences contained within Sections 58 and 58A of the Terrorism Act 2000 are similar, and in practice are unlikely to cause any problems for arts organisations or artists because the type of information captured by these offences is narrowly defined. In order for Section 58 to apply, the information in question must be of practical assistance to a terrorist, or potential terrorist.
Some examples of the type of material covered by Section 58 include information on how to build explosives, or information on military operations, or guidance on how to avoid surveillance and detection.
Although some people have been concerned that Section 58A may be used to stop people taking photographs of buildings or people, the legislation does not prevent artists or photographers taking pictures of public spaces, or of police officers in the course of normal policing, such as at protests or demonstrations. In order to arrest someone under Section 58A for photographing a police officer, there must be a reasonable suspicion that the image is likely to be useful to a terrorist. For example, information about the person’s house, car, routes to work and other movements may be useful to terrorists.
Importantly, it is a statutory defence for a person to prove that they had a reasonable excuse for eliciting, publishing or communicating the relevant information in respect of Section 58A or for collecting or recording the information in respect of Section 58. Legitimate journalistic or artistic activity is likely to constitute such an excuse.
If an artist or arts organisation is prosecuted for any of the offences in the Terrorism Act 2006 and/or the Terrorism Act 2000, the consequences could be very serious for him or her personally and for freedom of expression more widely. For all these reasons, it is advisable to prepare well
and ensure you have thought about any potential challenges early on.
The powers of the police and prosecuting authorities
The police have the right to enter and search galleries, museums and theatres and to seize artworks in certain defined circumstances.
Under Section 8 of the Police and Criminal Evidence Act, a magistrate may issue a warrant to search premises if a serious arrestable offence has been committed. Under Section 19 of the same act, police may seize anything that is on the premises if he/she has reasonable grounds for believing that it has been obtained in consequence of, or is evidence of an offence.
The police must be on the premises lawfully, on public property – as most galleries, museums and theatres are – either with a warrant or having been
invited in. Under Section 28 of the Terrorism Act 2006 a judge may issue a warrant authorising the police to enter and search premises and seize
any articles that are likely to be covered by the dissemination offence.
Police can seize an art work and recommend it be removed without having established a watertight case. All that needs to be established is reasonable grounds for believing the relevant crime has been committed. In some cases the advice or presence of the police may put pressure on the museum or gallery or theatre to remove an artwork voluntarily. However, an arts organisation is not obliged to remove an art work because the police have merely advised it to do so (rather than seizing the work). The police may be taking an overly conservative approach and their interpretation of the law may be wrong. The arts organisation should therefore seek independent legal advice before permanently removing artworks, and inform the police that they are doing so.
Prosecutions under the Terrorism Act require the consent of the Director of Public Prosecutions. In all cases the Crown Prosecution Service (CPS)
will adopt a three stage approach before deciding whether or not to prosecute. First, they will consider whether or not an offence has been committed. Secondly they will consider whether there is a realistic prospect of conviction. If there is enough evidence, the Crown Prosecution Service will proceed to the third stage and consider whether it is in the public interest to prosecute taking into consideration the competing rights of the artist or arts organisations and the protection of national security.
Practical guidance for artists and arts organisations
If you are exhibiting any specific photographs, images or installations, or presenting other artistic works including plays or performances that may be likely to be understood as encouraging or glorifying terrorism you should take the following steps. You can show the police your record of your decision-making process. If you have good relations with the local police, it can be helpful to discuss issues arising in relation to specific work in advance.
The issues to consider include:
• Making your motivation and reasons for making or displaying the work clear, why you consider the work to have artistic merit, and the steps
you have taken to mitigate any potential risk of it being misunderstood by the public or certain groups – see Appendix I for sample text
“Documenting a decision”.
• Providing the context for the work, what the artist is seeking to achieve, their previous work, the role of controversy in their work etc. If the artist does not have a substantial body of work, put the work and the artist in a wider context.
• Considering the public interest in this work and how it contributes to a wider debate in society.
• Considering how the work is likely to be perceived by the public as a useful way to contextualising the work.
• Being aware that the right to freedom of expression includes the right to express ideas and opinions that shock, offend and disturb. You might draft a free speech statement for your organisation.
SAMPLE FREE SPEECH STATEMENT FOR THOSE PRESENTING ARTWORKSTo exhibit a work of art is not to endorse the work or the vision, ideas, and opinions of the artist. It is to uphold the right of all to experience diverse visions and views. If, when controversies arise from the exhibition of a work of art, we welcome public discussion and debate with the belief that such discussion is integral to the experience of the art. Consistent with our fundamental commitment to freedom of speech, however, we will not censor exhibitions in response to political or ideological pressure. National Coalition Against Censorship guidelines www.ncac.org
• If the art work includes opinions of others that may be construed to glorify violence (for example), be sure to make it clear that the
opinions of others included in the work do not represent the artist’s or producing organisation’s
views and does not have their endorsement.
• Taking into account the factors to be balanced against the right to freedom of expression as discussed above.
• Demonstrating an awareness of similar work that has been successfully presented and keeping abreast of reactions to similar works.
You may decide to inform the police of your plans to present work, but do not seek “permission” to exhibit, which they cannot grant anyway. If you think the work may be borderline or cross over the line, it is best to take legal advice on the level of risk.
Advance preparation should bear in mind the principal legal standard of “reasonableness”. The factors relevant to demonstrably meeting that
standard may include:
• The artistic purposes of an organisation or an individual, both to invoke Article 10 and to refute suggestions of other motivations.
• Engagement with the authorities. Making early contact could make it easier for them to protect your right to freedom of expression.
• An openness to managing the risk of disorder, at least in principle, and subject to the imperative of ensuring that the artistic work is not unduly constrained.
Challenging a decision to investigate, seize work or prosecute will require specific legal advice and so is beyond the scope of this guidance. But in summary you may be able to:
• Argue that a police investigation, or a decision to seize works is a disproportionate interference with the right to freedom of expression and, if appropriate, institute judicial review proceedings so that a court can determine the lawfulness of the decision or decision-making process.
• Argue that a decision to prosecute is a disproportionate interference with the right to freedom of expression, and/or a breach of the Prosecutors Code or otherwise unlawful and, if appropriate, issue judicial review proceedings.
• Argue that the decision to prosecute or charge is not in the wider public interest, or that the work is not in fact likely to be understood as encouraging or glorifying terrorism.
Questions and answers
Q. What is the difference between Article 10 of the European Convention on Human Rights and Article 19 of the UN Declaration on Human Rights?
A. Freedom of expression, as outlined in Article 10, is a qualified right, meaning considerations regarding its protection must be balanced against other rights and interests. Article 19 of the UN Declaration on Human Rights, which also addresses freedom of expression, is less qualified:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of frontiers”. Nevertheless, even within the UN Declaration there are provisions which contemplate some qualification of the freedom expressed in Article 19. It is the European Convention on Human Rights which is currently relevant to UK law.
Q. Can I challenge a decision by a local authority or police body?
A. Yes. The usual way of doing so would be via judicial review. You should seek specialist legal advice before bringing your claim. Be aware that you must bring your claim as soon as possible and in any event no later than three months after the decision you wish to challenge. Judicial review is not ordinarily an effective means of overturning decisions quickly. Claims often take many months to be heard. However, it is possible to apply for a claim to be heard quickly if there are good grounds to do so. Even if you succeed you will not usually recover damages: they are awarded at the court’s discretion. The court might quash the decision under challenge, and/or require the public authority to adopt a different procedure in its decision-making.
Q. Can the police seize an art work, as opposed to “advise the removal” of an art work, only when they have a warrant from a judge?
A. Police officers who are lawfully on any premises may seize anything they have reasonable grounds for believing is evidence in relation to any offence, which means an art work may potentially be seized in circumstances where the police have not obtained a warrant. However, in practice, they are more likely to obtain a warrant in advance.
Q. Does the level of “state of alert” have any impact on the likelihood of police intervention?
A. In practice it is probably unlikely to make a discernable difference. Police intervention is more likely to be driven by complaints from members of the public or press viewing the work.
Q. Can a person or group commit an offence if they are making a statement that has been construed as incitement but doesn’t intend to encourage terrorism?
A. Yes, the offence can be committed recklessly, which is to say that the person making the statement did not intend to encourage terrorism by the statement but has nevertheless been construed as doing so.
Q. What is the situation regarding taking photographs of anything that might be useful to someone committing or preparing an act of terrorism, if the photographer can demonstrate that his/her motivation is purely artistic?
A. Legitimate artistic activity is likely to be a complete defence.
Q. What is the impact on artistic freedoms more generally of the Civil Contingencies Act 2004, which allows a minister, whenever there is the threat of terrorism, to make emergency regulations that could temporarily override almost all other legislation?
A. Although the Civil Contingencies Act is wide reaching, the Human Rights Act 1998 cannot be amended by emergency regulations under this Act. Therefore, freedom of expression rights cannot be eroded by this legislation, even in times of emergency. This may change if the Human Rights Act is abolished.
Q. Does the new legislation contained in the Counter-Terrorism and Security Act 2015 make any difference to the situation for artists and arts venues?
A. No, the provisions of that act do not have any specific relevance to artists or arts venues except where they are a specified authority contained in Schedule 6 of the act, which includes many educational establishments.
Q. Does the information in this pack extend to educational contexts as well as arts organisations, e.g. arts and humanities departments in Higher Education?
A. Yes, although they would also be under an additional obligation to prevent people being drawn into terrorism pursuant to the Counter-Terrorism and Securities Act 2015.
Q. What are the implications for artists and arts organisations of the broad definition of “terrorism”?
A. The fact that the definition of terrorism is broad and vague means a lot of things can potentially be brought under the umbrella of “terrorism”. Plainly, this has the potential to allow counter-terrorism controls to expand into broader areas of public life and there is certainly concern that there has been an increase in the use of anti-terror laws to stifle legitimate political and social protest. David Anderson QC, the UK’s Independent Reviewer of Terrorism Legislation (see Appendix III), has also criticised the broad definition of terrorism and pointed out that there has been a degree of “mission creep” over the years. However, in most instances involving the professional arts sector, a successful prosecution is unlikely, particularly because a prosecution cannot be brought without the consent of the director of public prosecutions (DPP). To date, no artist has been convicted under counter-terrorism legislation.
Q. What are the guarantees that organisations will not be unfairly deemed “proscribed”?
A. The Terrorism Act 2000 provides an appeal procedure for proscribed organisations or individuals affected by a proscription.
Q. Is there a contradiction between the defence of motivation in the case of recklessness and advice to contextualise/prepare in advance? If you recognise the problem in advance can you claim that “the offence has been committed recklessly”?
A. It is perfectly possible to recognise the problem in advance, take steps to avoid the problem and still end up committing the offence recklessly.
You could have been of the view (erroneously) that the steps you took in advance had removed that risk.
Q. Do I have to give the script of a play or images I intend to exhibit to the police or local authority prior to the show opening if requested?
A. You only have to provide a copy of a script (or any document or property) if the police or local authority has a legal power to view and seize
that material. Accordingly, if a local authority or the police ask to see particular artistic material you should ask them to clarify whether they are demanding that you hand over the material, or whether they are simply asking for your voluntary co-operation. If they are demanding that you
provide the material, ask them to identify the legal power that gives them the right to do this. You should make a contemporaneous note of their answers. If the police are simply seeking your voluntary co-operation then you do not have to give them anything. If in doubt about the scope of
their powers, consult a lawyer.
Q. The law says that if there is a statement that may be perceived by a member of the public as glorification then you may be liable for prosecution. How can an artist safeguard their expression from such an accusation?
A. Such a situation is an example of the offence under the Terrorism Act 2006 being committed recklessly. It would be a defence to show that the statement or publication in question did not express the defendant’s views and did not have his/her endorsement, and this was clear. So artists should take steps to make sure that they can demonstrate this in all the circumstances of the case, including the manner in which the statement has been presented.
Q. If the police consider that the law has been broken, is it the case that all staff in the organisation risk arrest or only curatorial and senior management?
A. It depends on their level of involvement, however in most circumstances it is likely that only those members of staff who played a decision-making role are likely to face prosecution.
Q. When a cultural work or process or action is quoting or appropriating material that could be considered inflammatory, for example as parody, to what extent is it protected by the Terrorism Act 2000 and the Terrorism Act 2006? (A corollary in copyright law would be “Fair Use”)
A. Again this would an example of recklessly committing the Terrorism Act 2006 offence, and it would be a defence to show the view expressed was not the view of the artist, which in the situation described would, in all likelihood, be quite straightforward.
Q. There have been instances where police have acted pre-emptively in the name of counterterrorism, i.e. before complaints have been made or before terrorist provocation has been evidenced. How can cultural organisations and individuals respond to pre-emptive force, or find protection from it?
A. Issues may be resolved by good communication with the relevant police force. If you have good relations with the local police, it may be helpful to discuss issues arising in relation to specific work in advance. However, the police can seize work on the grounds of reasonable suspicions even before a terrorism offence has been proved. Organisations can further protect themselves by making sure they understand the constraints of the offences created by counter-terrorism legislation and have taken steps to, as far as possible, contextualise the work to avoid misinterpretation and falling foul of the legislation.
Q. Would a UK arts organisation be subject to the Terrorism Act 2000 or the Terrorism Act 2006 if they presented a work by a non-UK artist previously presented in a non-UK context?
A. Yes – if they publish something they are potentially responsible, regardless of the nationality of the artist or the fact that it may have been exhibited elsewhere previously. In some cases, the fact that the work has been shown successfully elsewhere can be used to advantage in defence, but this is not always the case and should not be relied on.
Q. Do all prosecutions under counter-terrorism legislation have to have the consent of the director of public prosecutions? If not who else can give consent? Would the attorney general’s consent be needed if an artistic work is involved?
A. The relevant offences under the Terrorism Act 2000 and the Terrorism Act 2006 require the consent of the director of public prosecutions before a prosecution can be commenced. Where it appears to the director of public prosecutions that the offence has been committed for a purpose wholly or partly connected with the affairs of a foreign country, the director of public prosecutions shall not give consent without the prior permission of the attorney general.
Appendix I: Documenting and explaining a decision
Please note: Appendices are examples only and not a substitute for legal advice.
Example: An artist wants to make a body of work exploring graffiti propaganda from an anti-Western perspective. She is collecting imagery from around the world and planning to display them in the UK. In order to begin discussions with a gallery she documents the reasons for the work.
Reasons for the decision
1. My interest is to explore anti-Western graffiti as a propaganda tool and contextualise it within the UK’s war on terror and counter-terrorism
legislation.
2. The work uses visual imagery to contribute to our understanding of propaganda in general and perceptions of the West.
3. The work is part of a body of work that I have undertaken based on images of propaganda used in historical ideological conflicts.
4. The work deliberately sets out to stimulate legitimate debate about representation and identity in this case.
5. It responds to a debate of public interest, the intersection between religion and politics and how this is shaping society’s attitudes towards
resistance, dissent, propaganda.
6. There is public interest in participating in a critical debate about the interface between religion, politics and identity.
7. There is a public interest in freedom of artistic expression itself and I consider that this is work of value which should be seen to further the
important public debate.
8. My previous work has been exhibited/I have sold numerous copies of previous works, which have been positively reviewed.
9. The work forms part of a broader project/exhibition designed to educate or stimulate discussion on an important issue.
Appendix II: Sample letter for approaching the police
Dear xx Police Force,
For the attention of xx Counter Terrorism Team
We are xx, a local gallery who specialises in presenting contemporary political artwork.
We are writing to inform you that we are programming an exhibition from xx to xx by an established/emerging artist.
The exhibition will show an important body of work that includes imagery of xx.
We consider the exhibition xx to be a valuable contribution to the public debate concerning xx.
We consider it to have genuine artistic merit and that the artist is serious and committed and the work carefully and accurately researched.
In the light of recent media accusing work that seeks to engage with this highly sensitive area of contemporary life in the UK as glorifying terrorism, we have asked a lawyer to look at the work. S/he confirms our view that the work is not in breach of counter-terrorist legislation.
When the show opens to the public we will make it clear through signage that the work on display does not express the views of the artist or the gallery, that we do not endorse the violence portrayed.
We have scheduled a public debate on xx which will allow people of different views in this area to express their views.
Yours sincerely,
Appendix III: Commentaries on UK terrorism legislation
1. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 2005
On October 2005 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism “drew the government’s attention to related issues concerning the draft Terrorism Bill 2005, (TA 2006) indicating that, although many elements of the draft bill appeared to comply with article 15 of the International Covenant on Civil and Political Rights as the proposed provisions were sufficiently precise and the criminalisation of certain acts was legitimate, other proposed offences might not be. In particular, clauses 1 encouragement of terrorism), 2 (glorification of terrorism) and 3 (dissemination of terrorist publications) might be of concern because of their broad nature. According to the draft bill, these offences would require neither that the person expressing utterances or disseminating a publication had any subjective intent of inciting others to commit terrorist acts, nor that the person’s conduct resulted in an objective danger that one or more such offences would be committed. Instead, a broad test of how other persons could reasonably be expected to understand the utterances or publications would determine whether certain conduct was punishable. It appeared that the provisions might affect the legitimate exercise of the freedom of expression, such as fiction or non-fiction writings about real or imagined acts of terrorism (clause 2) or maps, glossaries, technical handbooks, or timetables of public transport (clause 3).”
2. Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights, 2009
In 2009 the International Commission of Jurists presented a report from its Eminent Jurists Panel on changes to the legal landscape internationally in the wake of the September 2001 attacks. It concluded: “Many participants at the UK hearing raised concerns that the breadth and the ambiguity of the offence of “glorification” create a risk of arbitrary and discriminatory application. The risk of such abuse is exacerbated by the fact that the offence applies also to past acts of terrorism and to terrorist acts occurring in other countries. Witnesses expressed concern that such wide-ranging laws reduce legitimate political debate, particularly within immigrant or minority communities.”
3. Report of the independent reviewer on the operation of the Terrorism Act 2000 and part 1 of the Terrorism Act 2006 by David Anderson QC
Highlights from the report:
4. Definition of terrorism
4.1. Though the United Nations required all States in the days after 9/11 to “take the necessary steps to prevent the commission of terrorist acts”, there remains no agreed international concept of terrorism. In those circumstances the UK’s definition, based on a recommendation by Lord Lloyd who was in turn inspired by an FBI working document, has strongly influenced the formulations of others, particularly in the Commonwealth but also at the level of the European Union.
4.2. There are three cumulative elements to the UK’s current definition:
(a) The actions (or threats of actions) that constitute terrorism, which encompass serious violence against a person; serious damage to property; and actions which endanger life, create a serious risk to health or safety, or are designed seriously to interfere with or seriously to disrupt an
electronic system;
(b) The target to which those acts must be directed: they must be designed to influence a government or international organisation, or to intimidate the public or a section or the public; and
(c) The motive that must be present: advancing a political, religious, racial or ideological cause.
The second of those elements (the target requirement) is a less effective filter than it might appear: “the government” means the government of any country in the world; and the target requirement need not be made out at all when the use or threat of action involves the use of firearms or explosives.
4.3. The TA 2000 [Terrorism Act] definition is an easy target for criticism. In particular:
(a) It is longer and more complex than its predecessor.
(b) Its international reach renders it remarkably broad – absurdly so in some cases. Particularly striking is its indiscriminate criminalisation of
those attacking “countries which are governed by tyrants and dictators– including, subject possibly UN sanctioned use of force against military targets.
(c) The effect of that breadth is to grant unusually wide discretions to all those concerned with the application of the counter-terrorism law, from Ministers exercising their power to impose executive orders to police officers deciding whom to arrest or to stop at a port and prosecutors deciding whom to charge.
(d) Those discretions become wider still when conduct ancillary in only the broadest sense to terrorism is criminalised, and when dubious expansionary phrases such as “terrorism-related” and “terrorist or extremist” are allowed on to the statute book or into the statistics. Those criticisms are only partly blunted by my own observation that the wide discretions appear for the most part to be responsibly exercised, and by the
general perception, endorsed by Lord Carlile in his essential report on the subject, that the UK definition is “useful and broadly fit for purpose”.
4.4. More fundamentally, it has been questioned:
(a) Whether a single definition of terrorism is even appropriate for all the various purposes to which it is currently applied; and whether the definition might be more soundly based on a “scheduled offence approach” akin to that used in some other European countries and in Council of Europe Conventions. These ideas draw force from the view (which I unhesitatingly share) that terrorism is first and foremost crime; and that if special legal rules are to be devised in relation to it, they should be limited in their application, and justified on the basis of operational necessity.
4.7. The current definition of terrorism contains no express exemption for acts carried out overseas that constitute lawful hostilities under international humanitarian law. One result (subject to the possible intervention of the Supreme Court) has been to criminalise Mohammed Gul for posting videos on YouTube showing attacks on coalition forces in Iraq and Afghanistan. Other consequences are the indiscriminate characterisation as “terrorism” of nationalist and separatist acts of violence, even in the context of a civil war, and notionally at least, the potential application of the Terrorism Acts even to UK forces engaged in conflicts.”
Acknowledgements
This information pack was produced by Vivarta in partnership with Index on Censorship and Bindmans LLP.
The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street, Matrix Chambers and Brick Court.
The packs have been designed and printed by Clifford Chance, Greg Thompson, Design Specialist, Document Production Unit
Art & the Law -Child Protection -A Guide to the Legal Framework Impacting on Artistic Freedom of Expression is published by Vivarta. This publication is supported using public funding by the National Lottery through Arts Council England. It is licensed under Creative Commons CC BY 2.0, excepting where copyright is assigned elsewhere and marked accordingly.
Vivarta is a digital media news lab and advocate for free expression rights. As vivarta.org we help defend free expression through investigative reporting and creative advocacy. As vivarta.com we apply new digital media, security and situational analysis tools to support this work. The Free Word Centre, 60 Farringdon Road, London EC1R 3GA www.vivarta.org
Five areas of law covered in this series of information packs
Child Protection
Counter Terrorism
Obscene Publications (available autumn 2015)
Public Order
Race and Religion (available autumn 2015)
As with the other documents in this series, this booklet is intended as an introduction to the legal framework that underpins the qualified right of freedom of expression enjoyed by artists and arts organisations in the UK. We hope that it will be of some assistance to artists, artistic directors, curators, venue management and trustees and others who seek to protect and promote artistic freedom of expression, especially when planning to programme challenging and controversial works.
This pack is not a substitute for legal advice.
If you are unsure about your responsibilities under the law at any time, you must obtain independent specialist legal advice. Some of the lawyers at work in the sector at time of publication are listed on the website.
Legal Adviser: Eloise Le Santo, Matrix Chambers
Editorial team:
Julia Farrington – Associate arts producer, Index on Censorship/Vivarta
Jodie Ginsberg – Chief executive, Index on Censorship
Rohan Jayasekera – Vivarta[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”3″ grid_id=”vc_gid:1485180258117-6d21ba20-aa4f-9″ taxonomies=”8886″][/vc_column][/vc_row]
[vc_row][vc_column][vc_column_text]This guide is also available as a PDF.[/vc_column_text][vc_column_text]Preface
Freedom of expression is essential to the arts. But the laws and practices that protect and nurture free expression are often poorly understood both by practitioners and by those enforcing the law. The law itself is often contradictory, and even the rights that underpin the laws are fraught with qualifications that can potentially undermine artistic free expression.
As indicated in these packs, and illustrated by the online case studies – available at indexoncensorship.org/artandoffence – there is scope to develop greater understanding of the ways in which artists and arts organisations can navigate the complexity of the law, and when and how to work with the police. We aim to put into context the constraints implicit in the European Convention on Human Rights and so address unnecessary censorship and self-censorship.
Censorship of the arts in the UK results from a wide range of competing interests – public safety and public order, religious sensibilities and corporate interests. All too often these constraints are imposed without clear guidance or legal basis.
These law packs are the result of an earlier study by Index: Taking the Offensive, which showed how selfcensorship manifests itself in arts organisations and institutions. The causes of self-censorship ranged from the fear of causing offence, losing financial support, hostile public reaction or media storm, police intervention, prejudice, managing diversity and the impact of risk aversion. Many participants in our study said that a lack of knowledge around legal limits contributed to self-censorship.
These packs are intended to tackle that lack of knowledge. We intend them as “living” documents, to be enhanced and developed in partnership with
arts groups so that artistic freedom is nurtured and nourished.
Jodie Ginsberg, chief executive, Index on Censorship
Foreword by Brett Rogers
I was surprised when I arrived at The Photographers’ Gallery in 2005 to discover there had never been a solo show of US photographer Sally Mann in the UK. So when I saw the touring exhibition, The Family and The Land, in Amsterdam, I decided to bring it to London.
In Holland and Scandinavia there had been no controversy surrounding the exhibition, but here in London, even before the show opened, we were caught up in a sudden, unexpected and distressing legal storm.
Suddenly, we were being told we risked arrest if we brought the work into the country: if convicted, we were told, the artistic team could find themselves on the child sex offender register and if Sally Mann stepped off a plane she might be arrested. It all escalated rapidly, so we were extremely relieved when it was equally quickly resolved after we took advice from lawyers.
During this furore, I stood by the show, determined to support the artist’s rightful role in engaging with children, especially a mother depicting her own children. I wanted the exhibition to oppose the reading of images of children which forces us to look through the eyes of a paedophile and ask: “If we had this or that mindset would we be aroused?”.
To me this is completely the wrong way for the public to approach these images. I wanted to invite the audience into the gallery to see what Sally Mann does so poetically in her work – depicting the lyricism and the lost innocence of children, but also the difficult transition from infancy to adolescence, creating a rounded portrait of childhood in the late 20th century.
Photographers are often drawn to very intimate subjects and have a way of approaching taboos that is important for us to see. Taboos need to be talked about, so for me the largely very constructive and positive debate in the media surrounding the show, especially about the role of women in photography was the best thing, moving as it did to the news pages and out of the niche of the art community talking to itself. Opening up that debate is what art should do, because to close it down or throw a veil over taboo subjects allows misinterpretations to be perpetuated.
Brett Rogers is artistic director of The Photographers’ Gallery, London.
(Brett Rogers was interviewed by Julia Farrington)
Freedom of expression
Freedom of expression is a UK common law right, and a right enshrined and protected in UK law by the Human Rights Act*, which incorporates the
European Convention on Human Rights into UK law.
*(At the time of writing (June 2015), the government is considering abolishing the Human Rights Act and introducing a British Bill of Rights. Free expression rights remain protected by UK common law, but it is unclear to what extent more recent developments in the law based on Article 10 would still apply.)
The most important of the Convention’s protections in this context is Article 10.
ARTICLE 10, EUROPEAN CONVENTION ON HUMAN RIGHTS1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is worth noting that freedom of expression, as outlined in Article 10, is a qualified right, meaning the right must be balanced against other rights.
Where an artistic work presents ideas that are controversial or shocking, the courts have made it clear that freedom of expression protections still apply.
As Sir Stephen Sedley, a former Court of Appeal judge, explained: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.” (Redmond-Bate v Director of Public Prosecutions, 1999).
Thus to a certain extent, artists and galleries can rely on their right to freedom of expression under Article 10 of the European Convention on Human Rights: the right to receive and impart opinions, information and ideas, including those which shock, disturb and offend.
As is seen above, freedom of expression is not an absolute right and can be limited by other rights and considerations. While the Crown Prosecution Service (CPS) and police have a positive obligation to promote the right to freedom of expression, they also have a duty to protect other rights: to private and family life, the right to protection of health and morals and the protection of reputation.
They also have the a duty to protect the rights of the child, meaning the right to freedom of expression may be subject to legal restrictions necessary to protect the rights of children. Artists and galleries who make or display works using children that could be considered obscene or indecent, should consider the ways in which the works advance the public interest and prepare well, so as to be in a position to defend their work and show that the rights of the children involved have been considered.
The following sections of the pack look at one element of the law that may be used to curtail free expression: child protection legislation.
Child protection offences explained
Child protection is a sensitive area of law and a deserved focus of public concern. The prospect of a police investigation alone will be a matter of substantial press interest, while an actual prosecution, although unlikely in the professional arts sector, would nevertheless result in grave consequences for the gallery and the artist. As there is no clear legal definition of the concept of indecency, and because of the sensitivity of the matter, decisions made by the police and Crown Prosecution Service can be subjective and inconsistent, and in the wrong context can seriously compromise freedom of expression rights. For that reason, it is important to be aware of the legal framework and to take practical preparatory steps at an early stage.
The offences proscribed by the law cover a broad spectrum of behaviour. If you make or display or possess a work involving images of children that could be considered to be, or is indecent, obscene or pornographic, you may be committing a serious criminal offence. The circumstances or motivation of a defendant are not relevant to determining whether or not the image is indecent. The work may be seized, and the gallery, its directors and staff and the artist may risk arrest and/or prosecution. Information about an investigation, arrest or prosecution can be kept and may be legally disclosed to others by police in certain circumstances. Convicted people may be treated as sex offenders depending on the seriousness of the charge.
The UK laws that could be used to prosecute artists in relation to images of children include:
• The Protection of Children Act 1978 (PCA), which prohibits making, taking, permitting to be taken, distributing or showing indecent photographs or “pseudo-photographs” of children (including film or computer data such as scans) http://www.legislation.gov.uk/ukpga/1978/37/contents. “Pseudo-photographs” are defined as “an image, whether made by computer graphics or otherwise, which appears to be a photograph”.
• The Coroners and Justice Act 2009 (COJA), which criminalises the possession of nonphotographic images of children which are pornographic and grossly offensive, disgusting or otherwise of an obscene character http://www.legislation.gov.uk/ukpga/2009/25/contents
These laws are intended to protect the rights of children. The police and prosecuting authorities should also consider the free expression rights of artists and galleries under the European Convention on Human Rights when making a decision about whether to investigate or prosecute.
Galleries and their officers or directors and artists could commit a criminal offence under the Protection of Children Act in relation to indecent photographic, film and pseudo-photographic images including tracings. For a photographic or film image to be considered indecent under the law, it must be found to offend recognised standards of propriety. This is an extremely fluid test that changes along with society’s changing expectations.
In relation to non-photographic or film images, the Coroners and Justice Act criminalises the making and display and possession of non-photographic images which are pornographic, grossly offensive or disgusting and focused on the anal or genital region of a child, or show certain specific sexual acts.
So, a photograph of a naked child in a room full of clothed people could be considered indecent under the Protection of Children Act. There would be a different and higher test under the Coroners and Justice Act for a drawing, painting or sculpture. For example, a drawing of a 14-year-old masturbating could well be considered unlawful.
The circumstances or motivation of the artist or gallery are not strictly relevant to the test, and the standards of some members of the public and some police officers may differ from your own. If you are to defend successfully your position and exhibit works that are controversial but not harmful, you need to recognise this potential problem in advance. Take clear steps to contextualise the works and be ready to demonstrate why they should not be treated as indecent.
If the Crown Prosecution Service does decide to prosecute, there are very limited defences available. In the case of possessing, making or taking indecent photographs of children – prohibited under the Protection of Children Act and the Criminal Justice Act – the gallery or artist would have to demonstrate that they had not seen the images and had no reason to suspect they were prohibited, that the images were of a person over 16 to whom the artist was married or in a civil partnership, or that they had a “legitimate reason” for being in possession of them or distributing them.
The concept of “legitimate reason” has not been tested in the context of art, but current guidance by the Crown Prosecution Service and the leading case (Atkins v Director of Public Prosecutions) suggests that in a non-artistic context it applies only in very restricted circumstances, such as when it is necessary to possess the images to conduct forensic tests or for legitimate research. It also suggests that any court should approach such a defence with scepticism.
In relation to non-photographic images, the artist/gallery may be able to argue at an early stage that the images were not pornographic by careful contextualisation. This does not always work, but the more thought put into it at an early stage, the better.
As stated above, to a certain extent artists and galleries can rely on their right to freedom of expression under Article 10 of the European Convention on Human Rights: the right to receive and impart opinions, information and ideas, including those which shock disturb and offend. That right is qualified by the need to protect the rights and freedoms of others.
In the context of child protection, the rights of children not to be exploited and those of a young audience will be set against the right to freedom of expression. That means the police and courts are permitted in some circumstances to act in ways that will compromise the freedom of expression rights of artists. Any decision they make will require these competing objectives to be balanced. The Crown Prosecution Service must reasonably consider that it is in the public interest to bring a prosecution.
If the images you are making raise issues about child protection, allowing for the heightened sensitivity about children under the law, then the balance may fall against freedom of expression. If an artist is prosecuted for any of these offences, the consequences could be very serious for him or her personally and for freedom of expression more widely. For all these reasons, it is advisable to prepare well and challenge early.
The powers of the police and prosecuting authorities
The police have the right to enter and search galleries and to seize artworks in certain defined circumstances. Under Section 8 of the Police and Criminal Evidence Act, a magistrate may issue a warrant to search premises if a serious arrestable offence has been committed. Under Section 19 of the same act, police may seize anything that is on the premises if they have reasonable grounds for believing that it has been obtained in consequence of, or is evidence of, an offence. The police must be on the premises lawfully – either with a warrant or attending an exhibition that is open to the public, or invited in. In most cases the police enter galleries following a complaint by a member of the public or the press.
Under Section 4 of the Protection of Children Act a judge may issue a warrant authorising the police to enter and search premises and seize any articles that they believe with reasonable cause to be, or include, indecent photographs of children. Under Section 67 of the Coroners and Justice Act, Section 4 of the Protection of Children Act also applies to images of children other than photographs, and digitally adjusted “pseudo-photographs”.
Police can seize an art work and recommend it be removed without having established a watertight case. All that need be established is reasonable grounds for believing the relevant crime has been committed. In some cases the advice or presence of the police may put pressure on the gallery to remove an artwork voluntarily. However, a gallery is not obliged to remove an artwork because the police have merely advised it to do so (rather than seizing the work). The police may be taking an overly conservative approach and their interpretation of the law may be wrong. The gallery should, therefore, seek independent legal advice before permanently removing artworks, and inform the police that they are doing so.
Prosecutions under the Protection of Children Act require the consent of the director of public prosecutions (DPP). In all cases the Crown Prosecution Service (CPS) will adopt a three stage approach before deciding whether or not to prosecute. First, they will consider whether or not an offence has been committed. Secondly, they will consider whether there is a realistic prospect of conviction, including if the image is indecent in the case of photographs, or the higher test for nonphotographic images, and whether there is any defence that is likely to succeed. In the context of child protection these defences are very limited. If there is enough evidence, the Crown Prosecution Service (CPS) will proceed to the third stage and consider whether it is in the public interest to prosecute, taking into consideration the competing rights of the artist or gallery and others, including children. A reading of the Crown Prosecution Service code which governs its decisions and its list of public interest factors suggests that there will be a lower threshold for prosecutions involving offences against children.
Practical guidance for galleries and artists
As good practice, you should institute a child protection policy that sets out the way you will handle controversial exhibitions where child safety issues might arise. This could be drafted with the help of legal or other professionals with experience in freedom of expression and it can be helpful to consult the police/local authority on best practice in general terms. Make sure you look at the local authority child protection policies and consider contacting the appropriate person in the local authority.
Where possible, establish good relations with the appropriate police officer responsible for child protection in your area. Such contacts should be routine for any public premises where children are admitted for participatory activities. A good relationship could be invaluable at a later stage. This is particularly important where controversial works are to be exhibited in communities where exposure to challenging or controversial art is less routine, or where officers are unused to the consideration or application of Article 10 rights to issues of policing.
If you are exhibiting any specific photographic images of children that might be considered indecent, or paintings or drawings that might be considered “pornographic, grossly offensive, disgusting or obscene” and which focus on the genital region or sexual acts, you should take the following steps:
• If you think the work may be borderline or cross over the line it is best to take legal advice so that you can be advised on the risks. Remember, when you are considering whether or not to take advice at this early stage you need to consider the likely standards of local community members and the local police, not your own.
• If you have good relations with the local police, it can be helpful to discuss issues arising in relation to specific work in advance. You can show the police the record of your decision-making process. You may decide to seek their assistance in determining whether or not there should be an age limit for the event though this will not always be appropriate and is not an alternative to the steps outlined here. Do not ask the police for advice on the content of the work, and do not seek “permission” to exhibit, which they cannot grant anyway.
• You should make a clear written record of the reasons for exhibiting the work relating to its artistic value, the steps you have taken to mitigate any potential harm and your decision-making process (see Appendix I for an example).
The issues to consider include:
• Why you consider the work to have artistic merit – context about the nature of the artist, what he or she is seeking to achieve, their previous work, the role of controversy in their work etc. If the artist is unknown or does not have a substantial body of work to which to refer, you should put the work and the artist in a wider context.
• The public interest in this work and freedom of expression itself, including in controversial or offensive work. Be prepared to make your motivation and reasons for making or displaying the work clear.
• The factors to be balanced against the right to freedom of expression, including the level of offence or harm that might be caused to a young audience and steps you have taken to mitigate it.
• You may choose to warn the audience that some images are not suitable for children/are sexually specific. Occasionally entrance to an exhibition may be restricted to those over 16 or over 18.
• Consider the potential harm to the subjects of the work – consider the age and welfare of any children involved and make sure that the children and parents/guardians have given informed consent in writing and that they have been properly supervised during the making of the work. The younger the child, the more important this factor is. Informed consent means making sure that the children/parents know how the work is to be used and have consented to it being publicly displayed. Be aware that consent does not in itself offer protection against prosecution, but will assist in combination with the other recommended steps. The gallery should obtain and keep copies of these consents. See Appendix II for pro forma consent form.
• Demonstrate an awareness of previous similar displays that have not been closed down. You should also keep abreast of reactions to recent art works and remain aware that the legal test of indecency relates to current recognised standards of propriety – which as noted earlier, is a fluid test.
• If you are contacted by the police, or if the police seek to remove a work, seek specialist legal advice.
Following the steps set out above will put an artist or gallery in a much stronger position to defend their right to make or exhibit controversial works involving children by demonstrating that they have behaved reasonably, considered the welfare of children and by contextualising the work.
Challenging a decision to investigate, seize work or prosecute will require specific legal advice and so is beyond the scope of this guidance, but in summary you may be able to:
• Argue that a police investigation, or a decision to seize works is a disproportionate interference with the right to freedom of expression and, if appropriate, institute judicial review proceedings so that a court can determine the lawfulness of the decision or decision making process.
• Argue that a decision to prosecute is a disproportionate interference with the right to freedom of expression, and/or a breach of the Prosecutors Code or otherwise unlawful and, if appropriate, issue judicial review proceedings.
• Argue that the decision to prosecute or charge is not in the wider public interest, or that the work is not in fact indecent or obscene.
Preparing well is crucial to any successful challenge.
Questions and answers
Q. What is the difference between Article 10 of the European Convention on Human Rights and Article 19 of the UN Declaration on Human Rights?
A. Freedom of expression, as outlined in Article 10, is a qualified right, meaning considerations regarding its protection must be balanced against other rights and interests. Article 19 of the UN Declaration on Human Rights, which also addresses freedom of expression, is less qualified: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. Nevertheless, even within the UN Declaration there are provisions which contemplate some qualification of the freedom expressed in Article 19. It is the European Convention on Human Rights which is currently relevant to UK law.
Q. Can I challenge a decision by a local authority or police body?
A. Yes. The usual way of doing so would be via judicial review. You should seek specialist legal advice before bringing your claim. Be aware that you must bring your claim as soon as possible and in any event no later than three months after the decision you wish to challenge. Judicial review is not ordinarily an effective means of overturning decisions quickly. Claims often take many months to be heard. However, it is possible to apply for a claim to be heard quickly if there are good grounds to do so. Even if you succeed you will not usually recover damages: they are awarded at the court’s discretion. The court might quash the decision under challenge, and/or require the public authority to adopt a different procedure in its decision-making.
Q. Does it make a difference if the display is outside the gallery?
A. In addition to legal restrictions under the Protection of Children Act and the Coroners And Justice Act, outside displays could also expose an artist to liability under the Indecent Displays (Control) Act 1981 (IDCA). The Indecent Displays (Control) Act does not apply to displays in an art gallery or museum and visible only from within the gallery or museum. However, a display projected onto the outside wall of a gallery would not be covered by this exception.
Q. How do the Crown Prosecution Service and the courts decide if an image is indecent?
A. A photographic image is considered indecent if it offends against recognised standards of propriety. That concept of recognised standards of propriety has been developed through case law, most recently in R v Neal (2011), which has described the recognised standard of propriety as a fluid test of indecency, changing according to society’s expectations.
Q. What levels of indecency are considered in prosecution of images of children?
A. There is no statutory definition of an indecent image in the Protection of Children Act – see the discussion in the R v Neal case. If there has been a successful prosecution and the jury have decided the image is indecent, the Court should apply sentencing guidelines which categorise indecency in the following way:
Category A
Images involving penetrative sexual activity and/or images involving sexual activity with an animal or sadism
Category B
Images involving non-penetrative sexual activity
Category C
Other indecent images not falling within categories A or B
Q. What are the legal issues affecting the relationship between artist and gallery?
A. Under the Protection of Children Act, the gallery may face prosecution for distributing or showing offending images, whereas the relevant offence in relation to the artist would be making or taking the offending images. Both could be prosecuted for possession with a view to the images being distributed. The time when the artwork is most likely to come within the radar of the police is when an exhibition opens. At this time the concern is with the artwork being in the public domain and the risk of prosecution tends to be faced primarily by the gallery. The defences for the artist if he or she is charged with making or taking the image are more limited than those for a gallery. The reason is that the person making an obscene image of children is usually considered more culpable than those who have secondary responsibility – publishers, disseminators etc, who might in some circumstances have a “legitimate reason” defence.
Q. Does artistic merit impact the extent to which an artist’s freedom of expression will be protected?
A. It is usually more likely that a gallery or artist will be permitted to display controversial works if they are well known and if it is generally considered that the work has artistic merit. This is something which may not be obvious to some non-specialist police officers and so it is important that you make early contact in order to contextualise the work and explain its importance.
This did not protect Richard Prince’s Spiritual America from being removed from Tate Modern’s exhibition POP LIFE in 2009 (for more about this case visit indexoncensorship.org/artandoffence).
Q. What test does the CPS apply to art works whether to prosecute?
A. As outlined above, the concept of recognised standards of propriety has been developed through case law, most recently in R v Neal (2011). In that case Mr Neal was prosecuted and convicted for possession of books of photographs by Sally Mann among others. The Court of Appeal overturned the conviction on the basis that the jury was misdirected by the judge about the objective standards to be applied when assessing whether or not a work is indecent. The cases in which the concept has been discussed have not concerned artists, however the standard has been applied by the Crown Prosecution Service to controversial art in considering whether a prosecution should be brought.
Q. What defences does the gallery potentially have?
A. It can be very difficult to establish a defence under the laws that are intended to ban child pornography or other publications harmful to children. Although there is a “legitimate reason” defence in the Protection of Children Act, it can only be relied on in very limited circumstances and has never been used in the context of a prosecution of an artist. If a gallery has taken the steps recommended in this guidance to ensure children and young people are protected, and behaved responsibly throughout, there are reasonable prospects of heading off a prosecution, or convincing a jury that the work was not indecent or obscene or that a defence should apply. However, relying on a defence to criminal charges in this area must be a last resort and you will need specialist legal advice tailored to your own circumstances.
Q. What decisions are the police able to take and how can they implement these decisions?
A. The police have powers to investigate and to seize artwork depicting children under Section 19 of the Police and Criminal Evidence Act and Section 4 of the Protection of Children Act if they have reasonable grounds for believing it offends the Protection of Children Act or Coroners and Justice Act. The Coroners and Justice Act includes a prohibition on possession of nonphotographic images of children, which are pornographic and grossly offensive, disgusting or otherwise of an obscene character. Images must also either focus solely or principally on a child’s genitals or anal region or depict a specified range of sexual acts (e.g. sexual activity with or in the presence of the child, masturbation, etc.). The Protection of Children Act criminalises the taking, possessing or displaying of indecent photographs of children.
Q. What potential measures can gallery directors take if the police try to seize artworks?
A. Gallery directors could argue that they have a “legitimate reason” for distributing, showing or possessing the photograph, although as stated above, you should take advice as the penalties are potentially very significant and the defence is untested in this context. Note that this would not apply to the artist for taking/making the photograph. If the police advise you to remove the works or to close the exhibition, you can argue that the advice is inappropriate or that you have good reasons for proceeding with the exhibition. If you have documented the reasons for exhibiting the photographs or paintings and obtained full consent from any children/parents, and established good relations with child protection officers, you will be in a stronger position to ensure that the exhibition can go ahead. Be careful about resisting physically or engaging in a heated debate with officers who could then arrest you for obstruction.
Q. Does the nature of the work (e.g. being a drawing rather than a photograph) impact the extent of an artist’s freedom of expression?
A. The tests for whether the making or displaying the work is a criminal offence are different depending on whether the image is a photograph in which case the Protection of Children Act applies or a painting or drawing in which case the Coroners and Justice Act applies. Displaying a photograph of a naked teenager standing alone in a field might create criminal liability (on the basis that it is considered by a jury to be indecent – the Protection of Children Act test), whereas displaying a painting of a naked teenager in similar circumstances would probably not (as it does not focus on the genital or anal region and is not grossly offensive, pornographic or obscene – the Criminal Justice Act test). Both rely on a jury’s understanding of what is indecent or obscene. Neither concept is clearly or succinctly defined in UK law.
Q. Can the police visit the gallery as a member of the public?
A. Yes, the police can visit the gallery. If they consider that an offence has been committed, they can obtain a warrant to enter and seize works.
Q. If an arts organisation or artist has sought legal advice does it have to follow it?
A. No lawyer is going to guarantee immunity or absolute safety from the law. In the best case scenario the lawyer will advise on the law and make it absolutely clear that it is your decision and your responsibility to decide how to act. It is the gallery and the artist who are going to have to make up their minds to take the risk or not.
Q. Do you have to follow the advice of the first lawyer you approach?
A. Research the lawyers who have they dealt with these specific issues – look at their track record to see if they are able to support you. You can always seek a second opinion from another lawyer if you are unhappy with the advice, although it is likely to be expensive.
Q. Could following the advice in this pack to establish good relations with the police encourage self-censorship given the police’s role in ensuring that neither artist nor gallery inadvertently break the law or cause any offence to their visitors?
A. Establishing good relations is not the same as avoiding offence – if you explain your purpose to the relevant people then you are in a much stronger position further down the line.
Q. Do I have to give the script of a play or images I intend to exhibit to the police or local authority prior to the show opening if requested?
A. You only have to provide a copy of a script (or any document or property) if the police or local authority has a legal power to view and seize that material.
Accordingly if a local authority or the police ask to see particular artistic material you should ask them to clarify whether they are demanding that you hand over the material, or whether they are simply asking for your voluntary co-operation. If they are demanding that you provide the material, ask them to identify the legal power that gives them the right to do this and ask to see a copy of any order made.
You should make a contemporaneous note of their answers. If the police are simply seeking your voluntary co-operation then you do not have to give them anything. If in doubt about the scope of their powers, consult a lawyer.
Appendix I: Documenting and explaining a decision
Please note: Appendices are examples only and not a substitute for legal advice.
Example: A gallery seeks to exhibit photographs of naked and semi-naked children in provocative poses taken by a well-known photographer who has previously exhibited photographs of clothed children in similarly provocative positions. The gallery owner decides the work has value and should be exhibited.
The decision may be documented as follows:
Reasons for the decision
1. The artist seeks to challenge the boundaries of photographic depictions of children on the edge of puberty and to respond to advertising aimed at young children and expose hypocrisy in the market for children’s clothing.
2. This work is made in response to a debate of general public interest – society’s approach to the portrayal of children’s bodies in different contexts.
3. The work has artistic merit and the artist has sold/exhibited numerous copies of previous works that have been positively reviewed (give examples) and has works in major art collections.
4. There is a public interest in freedom of artistic expression itself and we consider that this is work of value which should be seen exhibited and viewed so as to further an important debate.
5. We recognise that there is a risk the work may be misunderstood by some individuals and so cause undue offence or cause them to be concerned that the needs of children have not been considered and protected. Accordingly, we and the artist have taken steps to ensure children are adequately protected including:
a. We have confirmed that all the children involved in the photography were properly supervised by parents or those with parental responsibility while the photographs were taken and that informed written consent was given and the artist has confirmed this in writing.
b. We have considered whether or not our advertising material should contain warnings that the exhibition contains images which could offend.
c. We have considered whether or not we should issue advice or put a warning on the entrance to the gallery that the show is not suitable for children under 16/18.
d. We have carefully considered our own child protection guidance policy (and/or that of the relevant local or other authority) and are confident that the work falls within our policy recommendations.
Appendix II: Pro forma consent form
I, [name], the parent/guardian of [name] hereby consent to the taking of photographs of [name] by xxxx to be used in the artistic work xxxx and to be exhibited publicly in galleries and reproduced for publicity purposes in any medium including on websites.
[I recognise that these photographs involve nude and semi-nude poses/will form part of a work which includes violent images/etc]. (Delete as necessary)
I [name of child if over 12] also consent to such photographs being taken of me and used in the artistic work xxx and exhibited to the public in any gallery, and in any accompanying publicity material, including on websites.
Signed and dated
Acknowledgements
This information pack was produced by Vivarta in partnership with Index on Censorship and Bindmans LLP.
The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street, Matrix Chambers and Brick Court.
The packs have been designed and printed by Clifford Chance, Greg Thompson, Design Specialist, Document Production Unit
Art & the Law -Child Protection -A Guide to the Legal Framework Impacting on Artistic Freedom of Expression is published by Vivarta. This publication is supported using public funding by the National Lottery through Arts Council England. It is licensed under Creative Commons CC BY 2.0, excepting where copyright is assigned elsewhere and marked accordingly.
ISBN: 978-0-9933345-2-8
Supported using public funding by Arts Council England
Vivarta is a digital media news lab and advocate for free expression rights. As vivarta.org we help defend free expression through investigative reporting and creative advocacy. As vivarta.com we apply new digital media, security and situational analysis tools to support this work. The Free Word Centre, 60 Farringdon Road, London EC1R 3GA www.vivarta.org
Five areas of law covered in this series of information packs
Child Protection
Counter Terrorism
Obscene Publications (available autumn 2015)
Public Order
Race and Religion (available autumn 2015)
As with the other documents in this series, this booklet is intended as an introduction to the legal framework that underpins the qualified right of freedom of expression enjoyed by artists and arts organisations in the UK. We hope that it will be of some assistance to artists, artistic directors, curators, venue management and trustees and others who seek to protect and promote artistic freedom of expression, especially when planning to programme challenging and controversial works.
This pack is not a substitute for legal advice.
If you are unsure about your responsibilities under the law at any time, you must obtain independent specialist legal advice. Some of the lawyers at work in the sector at time of publication are listed on the website.
Legal Adviser: Tamsin Allen, Bindmans LLP
Editorial team:
Julia Farrington – Associate arts producer, Index on Censorship/Vivarta
Jodie Ginsberg – Chief executive, Index on Censorship
Rohan Jayasekera – Vivarta[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”3″ grid_id=”vc_gid:1500536033776-87bf7048-0697-5″ taxonomies=”8886″][/vc_column][/vc_row]
In a letter to Azerbaijani President Ilham Aliyev, independent lawyers, barristers or attorneys-at-law, expressed concern over the sentencing of their colleague, human rights lawyer Intigam Aliyev: “We call upon you, Mr President, to immediately and unconditionally release Intigam Aliyev and rehabilitate his civil and political rights.”
After six months in detention on spurious charges Intigam Aliyev was sentenced to seven and a half years in prison.
“We identify with Intigam Aliyev”, the lawyers wrote, “because we believe everybody should have a right to a fair trial, just as he does. Yet, Intigam Aliyev’s trial was marred by procedural irregularities and violations of the right to a public hearing and the right to access the files and documents of the case.” In addition, Intigam Aliyev’s attorney managed to prove that he was not guilty of implementing projects without registration, which he was charged with.
All 95 lawyers expressed their sympathy for Intigam Aliyev, as a unique lawyer. Not only is he a teacher for a generation of young Azerbaijanis, but he is also an expert of the European legal system, one of the first Azerbaijani lawyers to utilize the European Court of Human Rights and the regional tutor in the Human Rights Education for Legal Professionals (HELP) programme of the Council of Europe.
In the letter the lawyers furter identified with Intigam Aliyev: “For all of us, being a lawyer is a unique privilege. We identify with Intigam Aliyev because in Azerbaijan, any of us could be arrested simply for doing the same work as he did.”
The lawyers included colleagues of Intigam Aliyev, from various Eastern European countries, from within the Human Rights House Network project International Law in Advocacy, of which he is the national expert in Azerbaijan. The signing lawyers also included lawyers invested in human rights, from the United States and Canada, Egypt or Iran, as well as western European countries.
Florian Irminger, head of advocacy at the Human Rights House Foundation, underlines the importance of supporting human rights defenders in Azerbaijan: “The imprisonment of Intigam Aliyev is part of a systematic crackdown on human rights in the country. Arbitrary detention has been used to silence critical voices in Azerbaijan for years, whilst at the same time they exhibit a modern state through major international events. This letter and attention from around 100 lawyers from three continents witness that the outside world are not fooled by the promotion.”
In their letter, the lawyers highlight that the detention conditions of Intigam Aliyev have an impact on his already poor health:
“He suffers from severe chronic headaches in addition to nerve pain and has reportedly been denied of appropriate health care to date.” In their letter, the lawyers urge the Azerbaijani authorities to respect “basic humanitarian principles” and ensure that Intigam Aliyev is receiving “complete and necessary treatment for all medical concerns.”
Police blocked access to the concert venue by closing down the streets around it. (Photos: Mari Shibata for Index on Censorship)
A former Index Youth Advisory Board member travelled to Casablanca to see Moroccan rapper El Haqed’s first concert in the country. This is her account of the police crackdown that silenced the 19 June performance.
I had travelled nine hours for a concert that the Moroccan state did not want its people to see.
“This is going to be the first time I will have concert here, where I am from,” rapper Mouad “El Haqed” Belghouat told me ahead of the scuttled 19 June show at The Uzine, a Casablanca concert venue and cultural centre supported by the Touria and Abdelaziz Tazi Foundation.
“I’ve been preparing for this moment for a week. There have been jam sessions every day to make this the very best show.”
Belghouat, who won the Index on Censorship Award for Arts in March, is known as El Haqed, roughly translated as The Enraged in English. His music, which describes Morocco’s corruption and social injustice, is driven by the Arab Spring that sparked Casablanca’s pro-democracy February 20 movement.
Having been imprisoned several times since 2011 – during which he went on hunger strike for what he calls “appalling conditions” – he has regularly been silenced by officials. El Haqed has been limited to distributing his music on YouTube and sharing updates on Facebook, where he has an avid fan base of over 43,000.
Winning the Index arts award led to opportunities for El Haqed to perform in other European countries. In May he performed in Oslo. Fans back in Morocco were eagerly awaiting the chance to see him live. His planned concert drew people from around the country.
“I have come all the way from the capital city of Rabat to see Mouad’s first concert in Morocco,” said Hamza, a 22-year old LGBT activist, who declined to provide a last name. “I made sure I got here early, and catch up with everyone I know who has been involved in the February 20 movement where Mouad’s songs were our anthems.”
Just moments after his band Oukacha Family began their sound check and testing the stage lights, word came from the front of house that police had gathered outside. Someone had also been arrested as they tried to enter the building to see the concert.
“My friends and fans outside are telling me the police are growing in numbers and are blocking the street,” El Haqed said as his phone continued to ring. “Those who organised this concert are also informing me that the police are threatening me to stop this from happening.”
As the band began its sound check, word came of the police presence outside.
The atmosphere suddenly became tense. The 20 or so people already inside the five-storey building were at risk of arrest. Most of them had been inside since the early afternoon to study whilst fasting for Ramadan, and to pursue their creative interests in the practice rooms and artistic spaces.
As the calls kept flooding in with updates, Mouad instructed everyone to wait in the back yard as a way of occupying the building without being identified by the police, who were able to see through the glass windows of the well-lit front entrance.
In the midst of the confusion, it was at times difficult to identify who could be trusted. Local journalists who arrived at the scene were blocked from entering the street and could not get near the building. As the only non-Moroccan inside, I was being asked with suspicion whether I was from media; getting out a visible video camera was now a definite no-go zone.
“When will officials stop interfering in what we want to do?” sighed Hamza. “This space is so special, it is the only place where young people can express themselves, with the support to explore their creative interests. It is the first space of its kind in Casablanca, where artists can host exhibitions and concerts freely.”
Once Mouad and a handful of key activists located a route around the building that avoided the light, we climbed several flights of stairs to the top floor, crawling along the floor towards a dark room where we could finally inspect what was going on outside. The sight was a shock for everyone, we felt trapped inside the building.
To get images without them spotting us meant flash was off, or hands over any light that was coming out of our phones.
Security officials crowded both the building and the street, ensuring the streets were empty by stopping vehicles coming through. This meant it was now easier for them to identify anybody who caught their eye.
Saja, another El Haqued fan, said she was excited to come and support his first concert in Morocco, but was turned away by police. “As I drove towards the venue, I was stopped by the gas station at the corner of the street and was just told to move. We had no chance to explain ourselves or ask questions, everyone was simply told that the street was closed and therefore weren’t allowed to enter.”
Then we saw officials arriving to cut electricity to the centre. We quickly took the lift downstairs, as Mouad figured that there would be no concert tonight. “This is it,” he said, “we can’t do anything without electricity – we have no power for the microphones, the speakers, or the lights on stage.”
Minutes before the electricity was cut, Mouad tried to upload some pictures to Facebook about what was happening, but failed. With the electricity cut, the wifi signal faded.
Despite the confusion, El Haqed tried to get the word out to his fans via Facebook.
According to Moroccan press reports, police said that the building, which has hosted several concerts since it opened six months ago, was not up to safety codes, an allegation the centre’s management disputes. Contrary to the claims, the building is equipped with solar panels that provided the building with a small amount of light during emergency situations.
Once the police ordered the power to the centre cut, emergency power kept some of the lights on.
While waiting for news on what was going to happen next, Hamza had realised how lucky we were to have just missed the security officials arriving. “Imagine if they had arrived while we were out breaking fast eating!” he said. “That would have been really brutal, as we would also be left hungry and thirsty on top of all this stress.”
The decision was taken to leave the building at the instruction of the venue’s organisers. Once we managed to bypass the security without getting arrested, journalists who were barred from entering the street crowded around El Haqed to ask him what happened.
Once outside, El Haqed spoke to local media.
After we drove away from the area in a friend’s car, El Haqed told me that, “despite everything that happened, I feel strong”.
“I think that the government has a reason to bring police to the scene. Their action means my music is strong and is a threat to them. The incident makes me hurt and disappointed but I know I should keep going.”
And supporters like Saja have his back. “Mouad’s music speaks to the poor, those who are struggling and have nothing,” she says. “The cancellation of his first planned concert in Morocco is only going to fuel the desire to hear more from him.”
