15 Mar 17 | Campaigns, Campaigns -- Featured, Statements, Turkey, Turkey Statements
JOINT ORAL STATEMENT ON THE DETERIORATION OF FREEDOM OF EXPRESSION AND MEDIA FREEDOM IN TURKEY
UN Human Rights Council 34th Special Session
Item 4: Human rights situations that require the Council’s attention
15 March 2017
Mr President,
Index on Censorship, PEN International, ARTICLE 19 and 65 organisations are deeply concerned by the continuous deterioration of freedom of expression and media freedom in Turkey following the violent and contemptible coup attempt on 15 July 2016.
Over 180 news outlets have been shut down under laws passed by presidential decree following the imposition of a state of emergency. There are now at least 148 writers, journalists and media workers in prison, including Ahmet Şık, Kadri Gürsel, Ahmet and Mehmet Altan, Ayşe Nazlı Ilıcak and İnan Kızılkaya, making Turkey the biggest jailer of journalists in the world. The Turkish authorities are abusing the state of emergency by severely restricting fundamental rights and freedoms, stifling criticism and limiting the diversity of views and opinions available in the public sphere.
Restrictions have reached new heights in the lead up to a crucial referendum on constitutional reforms, which would significantly increase executive powers, set for 16 April 2017. The Turkish authorities’ campaign has been marred by threats, arrests and prosecutions of those who have voiced criticism of the proposed amendments. Several members of the opposition have been arrested on terror charges. Thousands of public employees, including hundreds of academics and opponents to the constitutional reforms, were dismissed in February. Outspoken “No” campaigners have been detained, adding to the overall climate of suspicion and fear. The rights to freedom of expression and information, essential to fair and free elections, are in jeopardy.
In the run-up to the referendum, the need for media pluralism is more important than ever. Voters have the right to be duly informed and to be provided with comprehensive information on all views, including dissenting voices, in sufficient time. The prevailing atmosphere should be one of respect for human rights and fundamental freedoms. There should be no fear of reprisals.
We urge this Council, its members and observer states, to call on the Turkish authorities to:
- Guarantee equal broadcasting time for all parties and allow for the dissemination of all information to the maximum extent possible in order to ensure that voters are fully informed;
- Put an end to the climate of suspicion and fear by:
- Immediately releasing all those held in prison for exercising their rights to freedom of opinion and expression;
- Ending the prosecutions and detention of journalists simply on the basis of the content of their journalism or alleged affiliations;
- Halting executive interference with independent news organisations including in relation to editorial decisions, dismissals of journalists and editors, pressure and intimidation against critical news outlets and journalists;
- Revoke the excessively broad provisions under the state of emergency, the application of which, in practice, are incompatible with Turkey’s human rights obligations.
Thank you Mr. President
ActiveWatch – Media Monitoring Agency
Adil Soz – International Foundation for Protection of Freedom of Speech
Albanian Media Institute
Americans for Democracy & Human Rights in Bahrain
ARTICLE 19
Association of European Journalists
Basque PEN
Brazilian Association for Investigative Journalism
Canadian Journalists for Free Expression
Cartoonists Rights Network International
Center for Independent Journalism – Hungary
Croatian PEN centre
Danish PEN
Digital Rights Foundation
English PEN
European Centre for Press and Media Freedom
European Federation of Journalists
Finnish PEN
Foro de Periodismo Argentino
German PEN
Global Editors Network
Gulf Centre for Human Rights
Human rights watch
Icelandic PEN
Independent Chinese PEN Center
Independent Journalism Center – Moldova
Index on Censorship
Institute for Media and Society
International Press Institute
International Publishers Association
Journaliste en danger
Media Foundation for West Africa
Media Institute of Southern Africa
Media Watch
MYMEDIA
Nigeria PEN Centre
Norwegian PEN
Pacific Islands News Association
Pakistan Press Foundation
Palestine PEN
PEN American Center
PEN Austria
PEN Canada
PEN Català
PEN Centre in Bosnia and Herzegovina
PEN Centre of German-Speaking Writers Abroad
PEN Eritrea in exile
PEN Esperanto
PEN Estonia
PEN France
PEN International
PEN Melbourne
PEN Myanmar
PEN Romania
PEN Suisse Romand
PEN Trieste
Portuguese PEN Centre
Punto24
Reporters Without Borders
Russian PEN Centre
San Miguel PEN
Serbian PEN Centre
Social Media Exchange – SMEX
South East Europe Media Organisation (SEEMO)
South East European Network for Professionalization of Media
Vigilance pour la Démocratie et l’État Civique
Wales PEN Cymru
World Association of Newspapers and News Publishers (WANIFRA)
19 Jul 16 | Europe and Central Asia, Greece, Mapping Media Freedom, mobile, News and features
As Greece tries to deal with around 50,000 stranded refugees on its soil after Austria and the western Balkan countries closed their borders, attention has turned to the living conditions inside the refugee camps. Throughout the crisis, the Greek and international press has faced major difficulties in covering the crisis.
“It’s clear that the government does not want the press to be present when a policeman assaults migrants,” Marios Lolos, press photographer and head of the Union of Press Photographers of Greece said in an interview with Index on Censorship. “When the police are forced to suppress a revolt of the migrants, they don’t want us to be there and take pictures.”
Last summer, Greece had just emerged from a long and painful period of negotiations with its international creditors only to end up with a third bailout programme against the backdrop of closed banks and steep indebtedness. At the same time, hundreds of refugees were arriving every day to the Greek islands such as Chios, Kos and Lesvos. It was around this time that the EU’s executive body, the European Commission, started putting pressure on Greece to build appropriate refugee centres and prevent this massive influx from heading to the more prosperous northern countries.
It took some months, several EU Summits, threats to kick Greece out of the EU free movement zone, the abrupt closure of the internal borders and a controversial agreement between the EU and Turkey to finally stem migrant influx to Greek islands. The Greek authorities are now struggling to act on their commitments to their EU partners and at the same time protect themselves from negative coverage.
Although there were some incidents of press limitations during the first phase of the crisis in the islands, Lolos says that the most egregious curbs on the press occurred while the Greek authorities were evacuating the military area of Idomeni, on the border with Macedonia.
In May 2016, the Greek police launched a major operation to evict more than 8,000 refugees and migrants bottlenecked at a makeshift Idomeni camp since the closure of the borders. The police blocked the press from covering the operation.
“Only the photographer of the state-owned press agency ANA and the TV crew of the public TV channel ERT were allowed to be there,” Lolos said, while the Union’s official statement denounced “the flagrant violation of the freedom and pluralism of press in the name of the safety of photojournalists”.
“The authorities said that they blocked us for our safety but it is clear that this was just an excuse,” Lolos explained.
In early December 2015, during another police operation to remove migrants protesting against the closed borders from railway tracks, two photographers and two reporters were detained and prevented from doing their jobs, even after showing their press IDs, Lolos said.
While the refugees were warmly received by the majority of the Greek people, some anti-refugee sentiment was evident, giving Greece’s neo-nazi, far-right Golden Dawn party an opportunity to mobilise, including against journalists and photographers covering pro- and anti-refugee demonstrations.
On the 8 April 2016, Vice photographer Alexia Tsagari and a TV crew from the Greek channel E TV were attacked by members of Golden Dawn while covering an anti-refugee demonstration in Piraeus. According to press reports, after the anti-refugee group was encouraged by Golden Dawn MP Ilias Kasidiaris to attack anti-fascists, a man dressed in black, who had separated from Golden Dawn’s ranks, slapped and kicked Tsagari in the face.
“Since then I have this fear that I cannot do my work freely,” Tsagari told Index on Censorship, adding that this feeling of insecurity becomes even more intense, considering that the Greek riot police were nearby when the attack happened but did not intervene.
Following the EU-Turkey agreement in late March which stemmed the migrant flows, the Greek government agreed to send migrants, including asylum seekers, back to Turkey, recognising it as “safe third country”. As a result, despite the government’s initial disapproval, most of the first reception facilities have turned into overcrowded closed refugee centres.
“Now we need to focus on the living conditions of asylum seekers and migrants inside the state-owned facilities. However, the access is limited for the press. There is a general restriction of access unless you have a written permission from the ministry,” Lolos said, adding that the daily living conditions in some centres are disgraceful.
Ola Aljari is a journalist and refugee from Syria who fled to Germany and now works for Mapping Media Freedom partners the European Centre for Press and Media Freedom. She visited Greece twice to cover refugee stories and confirms that restrictions on journalists are increasing.
“With all the restrictions I feel like the authorities have something to hide,” Aljari told Index on Censorship, also mentioning that some Greek journalists have used bribes in order to get authorisation.
Greek journalist, Nikolas Leontopoulos, working along with a mission of foreign journalists from a major international media outlet to the closed centre of VIAL in Chios experienced recently this “reluctance” from Greek authorities to let the press in.
“Although the ministry for migration had sent an email to the VIAL director granting permission to visit and report inside VIAL, the director at first denied the existence of the email and later on did everything in his power to put obstacles and cancel our access to the hotspot,” Leontopoulos told Index on Censorship, commenting that his behaviour is “indicative” of the authorities’ way of dealing with the press.
16 Feb 16 | Art and the Law Commentary, Artistic Freedom Commentary and Reports
By Daniel McClean, a lawyer and independent curator
There are few recent legal cases involving freedom of artistic expression in the UK.
In one sense, this is to be welcomed. The UK, like other western legal systems, provides wide latitude to its protection. Freedom of artistic expression is specifically incorporated as a defence into different laws. The Obscene Publications Act (1959), for example, expressly recognizes artistic merit as a defence to the publication of otherwise obscene material.
The absence of recent cases involving artistic freedom of expression in particular as a defence in criminal prosecutions to charges of obscenity, indecency, endangering public security and hate speech might suggest that we should not be too concerned about its protection (FN1) and that the courts can be called upon if required to distinguish, for example, between artistic works featuring photographs of naked children and child pornography or between plays examining religion and racist diatribe.
Yet might not the absence of case law also suggest more perversely that artistic freedom of expression is not relied upon by artists, writers, publishers, museums, galleries and theatres and by others when it should be?
The apparent absence of cases and disputes (including cases that settle prior to trial) is symptomatic of two tendencies of which we should be concerned.
The first tendency is a lack of certainty as to what scope and weight freedom of artistic expression has within the law today.
In particular, it is unclear what role artistic expression has under the general right to free expression, i.e. as protected under Article 10 of the European Convention on Human Rights (1950) and recognized in UK law through the Human Rights Act (1998)? In the UK there have seemingly been no reported cases to date where the right to freedom of artistic expression has been relied upon by claimants or defendants in the interpretation of criminal and civil statutes or in balancing against other human rights, for example, the rights to privacy or reputation.
This contrasts with the widespread (and justified) reliance on Article 10 in cases involving press freedom and communication in the public interest. It might similarly be worthwhile, for example, for there to be a challenge to the potential constraints imposed upon artistic freedom of expression by intellectual property law or the law of privacy. Artistic freedom of expression has been tested against these rights in other jurisdictions (FN2).
In the jurisprudence of the European Court of Human Rights (ECHR), there have also been few cases where the court has had to consider artistic freedom of expression.
The case of Vereinigung Bildender Kunstler v Austria (2007)(FN3) is one of the few examples. The claimant (an artists’ association based in Austria) had exhibited in Vienna’s famous Seccession gallery, a satirical painting by the artist, Otto Muhl of the *right wing, Austrian politician, Mr Meischberger* depicted in various demeaning sexual acts with the *fascist, Austrian politician*, Jorg Haider.
The Vienna court had held that Muhl’s painting had debased Meischberger’s public standing. It awarded him damages and prohibited future exhibition of the painting. The ECHR narrowly (by 4 votes to 3) found the Austrian court’s injunction to be disproportionate to the otherwise legitimate aim of protecting ‘public morals’ and awarded the artists’ association damages. In particular, it found that Muhl’s painting should carry greater weight in the balancing exercise because it was akin to a form of political satire which commented on Mr Meischberger’s public image.
As a precedent, the ECHR’s judgment vindicates artistic freedom of expression. Yet it also has narrow application. The upshot is that artistic expression has to be closely aligned to politically orientated speech if it is to trump other rights. In particular, it leaves little clue as to what weight artistic freedom of expression might have on its own terms, placing it in a limbo somewhere between political speech and less elevated commercial speech. This is to sell freedom of artistic expression short.
John Tusa (FN4) eloquently writes that ‘the arts matter,” …. “because they are universal; because they are non-material; because they deal with daily experience in a transforming way; because they question the way we look at the world; because they offer different explanations of that world … A nation without arts would be a nation that had stopped talking to itself, stopped dreaming, and had lost interest in the past and lacked curiosity about the future.”
Tusa’s point is clear: the arts are fundamental to human autonomy and social and cultural development: a society which constrains the arts is impoverished. The arts can uniquely ask probing and troubling questions about our place in the world as the ancient Greeks were only too aware in the space they carved out for tragic theatre. In this sense, some if not many forms of artistic speech might be regarded as being of equivalent importance in their own right to forms of politically orientated speech.
Of course, not all forms of so-called artistic expression do carry weight. There are many examples of trite and meretricious expression which bears the name of art, but there is no reason why the courts cannot discriminate such instances, even if this may not always be straightforward. After all, judgments about political speech also involve judgments of value. In the case of Leroy v France (2008)(FN4), the ECHR upheld the conviction by the French authorities of the claimant, a cartoonist, of the crime of apologizing for terrorism after he depicted a cartoon in the aftermath of 9/11, showing the twin towers collapsing in the terrorist attack with the caption, ‘We have all dreamed of this. Hamas has done it’. There is no reason why simple hate/offensive speech such as this should be given greater weight as artistic expression because it is framed within the context of a cartoon – even if we might disagree with the punishment afforded by the French authorities.
The second tendency is a pattern towards self-censorship that can be discerned particularly on the part of publishers and institutions to avoid communicating subject matter that carries the risk of being deemed offensive and ‘politically incorrect’ whether this subject matter is unlawful or not.
Self-censorship in this form can be exercised at two stages. The first stage is avoiding communicating such subject matter at all. It is difficult to measure such acts of self- censorship, but there is a good reason to believe these acts are becoming increasingly common as Index on Censorship uncovered in Taking the Offensive.
The second stage (which I consider here) is unnecessarily removing controversial and provocative artistic subject matter from public view (for example, abandoning a play or taking an artwork down from exhibit in a public gallery) when challenged to do so, including by the police authorities.
The Tate’s removal of Richard Prince’s iconic ‘Spiritual America’ (1983) from the exhibition ‘Pop Life’ when challenged by the UK’s Obscene Publications Unit in 2007 is a powerful example of this second type of self-censorship.
Prince’s work is an ironic appropriation (as reflected in the work’s title) of a photographic image featuring the pre-pubescent actress Brooke Shields then aged twelve which had remarkably been published earlier in Playboy magazine. Prince’s work comments on the type of society and culture in which this type of image might be made as well as on Brooke Shield’s sexualized role as child actress. Prince’s work as well as being easily available on the Internet had been widely exhibited across the world, including in prestigious venues such as the Guggenheim, New York.
Following a complaint by The Daily Mail, the Tate’s trustees had been threatened with criminal prosecution under the UK’s Protection of Children Act (1978) for exhibiting an indecent image of a child – if Prince’s work was not removed from view. They were understandably afraid –a fear compounded by conservative and misguided legal advice they had received – and complied. Yet, if the Tate’s trustees had been prosecuted under the Act, which if submitted is unlikely (FN5), it would have been able to have rely upon the ‘legitimate reason’ defence – a defence made credible by the critical and institutional reception of Prince’s work within the art world.
At the moment we stand at a crossroads in the arts where creators and institutions are uncertain of their legal rights and oppressed by the desire to avoid giving offence and breaching taboos. What is to be done?
I wish to give the example of the Photographer’s Gallery (London) decision to mount an exhibition of the photographs of the internationally renowned artist, Sally Mann, in 2010 as an illustration of the positive steps that institutions can take to confront the specter of censorship, with the help of appropriately inclined lawyers.
In 2010, the Photographer’s Gallery decided to mount an exhibition of Sally Mann’s beautiful black and white photographs ‘The Family and the Land’. Sally Mann’s exhibition included a selection of photographs taken of her children naked while playing in the landscape and in a pond in the garden of the family home. Mann is a serious international artist (like Prince) whose work has been widely exhibited and critically acclaimed. Unlike Prince’s appropriated image of the naked Brooke Shields, Mann’s photographs cannot be accurately described as being prurient.
Given the strength of the social taboo against child nudity and the Tate incident in 2007, both Mann and the Photographer’s Gallery were concerned about the potential legal implications if the exhibition were to go ahead.
The advice that my law firm to the Photographer’s Gallery was robust, though not entirely risk free. It said, in essence, that even in the unlikely event a prosecution was to be brought against the artist and gallery under the Protection of Children Act 1978, for exhibiting ‘indecent’ images of children, there would be strong grounds for resisting this prosecution under the ‘legitimate reason’ defence, including Mann’s standing as an artist and the critical reception of her work, including photographs of her children.
In the event, the exhibition was mounted and not a whiff of complaint was heard from the police authorities or even the national press.
Exhibitions like Sally Mann’s at the Photographer’s Gallery are important because they create cultural precedents. They show what can be done when creators and institutions act with courage, but also receive robust legal advice. Importantly, they enable others to build upon their actions as precedents in the future.
In contrast to Art, the Law is often represented as being black and white. Yet as lawyers know all too well, the Law is also replete with grey areas of interpretation. Like Art, the Law is not fixed, but is shaped through contestation and discussion. If the scope of artistic freedom of expression is to be protected and enlarged today, it urgently requires that its contours are debated and challenged.
16 Feb 16
By Daniel McClean, 16 February 2016
Daniel McClean is a lawyer and independent curator
There are few recent legal cases involving freedom of artistic expression in the UK.
In one sense, this is to be welcomed. The UK, like other western legal systems, provides wide latitude to its protection. Freedom of artistic expression is specifically incorporated as a defence into different laws. The Obscene Publications Act (1959), for example, expressly recognizes artistic merit as a defence to the publication of otherwise obscene material.
The absence of recent cases involving artistic freedom of expression in particular as a defence in criminal prosecutions to charges of obscenity, indecency, endangering public security and hate speech might suggest that we should not be too concerned about its protection (FN1) and that the courts can be called upon if required to distinguish, for example, between artistic works featuring photographs of naked children and child pornography or between plays examining religion and racist diatribe.
Yet might not the absence of case law also suggest more perversely that artistic freedom of expression is not relied upon by artists, writers, publishers, museums, galleries and theatres and by others when it should be?
The apparent absence of cases and disputes (including cases that settle prior to trial) is symptomatic of two tendencies of which we should be concerned.
The first tendency is a lack of certainty as to what scope and weight freedom of artistic expression has within the law today.
In particular, it is unclear what role artistic expression has under the general right to free expression, i.e. as protected under Article 10 of the European Convention on Human Rights (1950) and recognized in UK law through the Human Rights Act (1998)? In the UK there have seemingly been no reported cases to date where the right to freedom of artistic expression has been relied upon by claimants or defendants in the interpretation of criminal and civil statutes or in balancing against other human rights, for example, the rights to privacy or reputation.
This contrasts with the widespread (and justified) reliance on Article 10 in cases involving press freedom and communication in the public interest. It might similarly be worthwhile, for example, for there to be a challenge to the potential constraints imposed upon artistic freedom of expression by intellectual property law or the law of privacy. Artistic freedom of expression has been tested against these rights in other jurisdictions (FN2).
In the jurisprudence of the European Court of Human Rights (ECHR), there have also been few cases where the court has had to consider artistic freedom of expression.
The case of Vereinigung Bildender Kunstler v Austria (2007)(FN3) is one of the few examples. The claimant (an artists’ association based in Austria) had exhibited in Vienna’s famous Seccession gallery, a satirical painting by the artist, Otto Muhl of the *right wing, Austrian politician, Mr Meischberger* depicted in various demeaning sexual acts with the *fascist, Austrian politician*, Jorg Haider.
The Vienna court had held that Muhl’s painting had debased Meischberger’s public standing. It awarded him damages and prohibited future exhibition of the painting. The ECHR narrowly (by 4 votes to 3) found the Austrian court’s injunction to be disproportionate to the otherwise legitimate aim of protecting ‘public morals’ and awarded the artists’ association damages. In particular, it found that Muhl’s painting should carry greater weight in the balancing exercise because it was akin to a form of political satire which commented on Mr Meischberger’s public image.
As a precedent, the ECHR’s judgment vindicates artistic freedom of expression. Yet it also has narrow application. The upshot is that artistic expression has to be closely aligned to politically orientated speech if it is to trump other rights. In particular, it leaves little clue as to what weight artistic freedom of expression might have on its own terms, placing it in a limbo somewhere between political speech and less elevated commercial speech. This is to sell freedom of artistic expression short.
John Tusa (FN4) eloquently writes that ‘the arts matter,” …. “because they are universal; because they are non-material; because they deal with daily experience in a transforming way; because they question the way we look at the world; because they offer different explanations of that world … A nation without arts would be a nation that had stopped talking to itself, stopped dreaming, and had lost interest in the past and lacked curiosity about the future.”
Tusa’s point is clear: the arts are fundamental to human autonomy and social and cultural development: a society which constrains the arts is impoverished. The arts can uniquely ask probing and troubling questions about our place in the world as the ancient Greeks were only too aware in the space they carved out for tragic theatre. In this sense, some if not many forms of artistic speech might be regarded as being of equivalent importance in their own right to forms of politically orientated speech.
Of course, not all forms of so-called artistic expression do carry weight. There are many examples of trite and meretricious expression which bears the name of art, but there is no reason why the courts cannot discriminate such instances, even if this may not always be straightforward. After all, judgments about political speech also involve judgments of value. In the case of Leroy v France (2008)(FN4), the ECHR upheld the conviction by the French authorities of the claimant, a cartoonist, of the crime of apologizing for terrorism after he depicted a cartoon in the aftermath of 9/11, showing the twin towers collapsing in the terrorist attack with the caption, ‘We have all dreamed of this. Hamas has done it’. There is no reason why simple hate/offensive speech such as this should be given greater weight as artistic expression because it is framed within the context of a cartoon – even if we might disagree with the punishment afforded by the French authorities.
The second tendency is a pattern towards self-censorship that can be discerned particularly on the part of publishers and institutions to avoid communicating subject matter that carries the risk of being deemed offensive and ‘politically incorrect’ whether this subject matter is unlawful or not.
Self-censorship in this form can be exercised at two stages. The first stage is avoiding communicating such subject matter at all. It is difficult to measure such acts of self- censorship, but there is a good reason to believe these acts are becoming increasingly common as Index on Censorship uncovered in Taking the Offensive.
The second stage (which I consider here) is unnecessarily removing controversial and provocative artistic subject matter from public view (for example, abandoning a play or taking an artwork down from exhibit in a public gallery) when challenged to do so, including by the police authorities.
The Tate’s removal of Richard Prince’s iconic ‘Spiritual America’ (1983) from the exhibition ‘Pop Life’ when challenged by the UK’s Obscene Publications Unit in 2007 is a powerful example of this second type of self-censorship.
Prince’s work is an ironic appropriation (as reflected in the work’s title) of a photographic image featuring the pre-pubescent actress Brooke Shields then aged twelve which had remarkably been published earlier in Playboy magazine. Prince’s work comments on the type of society and culture in which this type of image might be made as well as on Brooke Shield’s sexualized role as child actress. Prince’s work as well as being easily available on the Internet had been widely exhibited across the world, including in prestigious venues such as the Guggenheim, New York.
Following a complaint by The Daily Mail, the Tate’s trustees had been threatened with criminal prosecution under the UK’s Protection of Children Act (1978) for exhibiting an indecent image of a child – if Prince’s work was not removed from view. They were understandably afraid –a fear compounded by conservative and misguided legal advice they had received – and complied. Yet, if the Tate’s trustees had been prosecuted under the Act, which if submitted is unlikely (FN5), it would have been able to have rely upon the ‘legitimate reason’ defence – a defence made credible by the critical and institutional reception of Prince’s work within the art world.
At the moment we stand at a crossroads in the arts where creators and institutions are uncertain of their legal rights and oppressed by the desire to avoid giving offence and breaching taboos. What is to be done?
I wish to give the example of the Photographer’s Gallery (London) decision to mount an exhibition of the photographs of the internationally renowned artist, Sally Mann, in 2010 as an illustration of the positive steps that institutions can take to confront the specter of censorship, with the help of appropriately inclined lawyers.
In 2010, the Photographer’s Gallery decided to mount an exhibition of Sally Mann’s beautiful black and white photographs ‘The Family and the Land’. Sally Mann’s exhibition included a selection of photographs taken of her children naked while playing in the landscape and in a pond in the garden of the family home. Mann is a serious international artist (like Prince) whose work has been widely exhibited and critically acclaimed. Unlike Prince’s appropriated image of the naked Brooke Shields, Mann’s photographs cannot be accurately described as being prurient.
Given the strength of the social taboo against child nudity and the Tate incident in 2007, both Mann and the Photographer’s Gallery were concerned about the potential legal implications if the exhibition were to go ahead.
The advice that my law firm *(Mark Stephens provided in conjunction with Geoffrey Robertson QC) to the Photographer’s Gallery was robust**confused on what should be in parenthesis and what shouldn’t* (though not entirely risk free). It said, in essence, that even in the unlikely event a prosecution was to be brought against the artist and gallery under the Protection of Children Act 1978, for exhibiting ‘indecent’ images of children, there would be strong grounds for resisting this prosecution under the ‘legitimate reason’ defence, including Mann’s standing as an artist and the critical reception of her work, including photographs of her children.
In the event, the exhibition was mounted and not a whiff of complaint was heard from the police authorities or even the national press.
Exhibitions like Sally Mann’s at the Photographer’s Gallery are important because they create cultural precedents. They show what can be done when creators and institutions act with courage, but also receive robust legal advice. Importantly, they enable others to build upon their actions as precedents in the future.
In contrast to Art, the Law is often represented as being black and white. Yet as lawyers know all too well, the Law is also replete with grey areas of interpretation. Like Art, the Law is not fixed, but is shaped through contestation and discussion. If the scope of artistic freedom of expression is to be protected and enlarged today, it urgently requires that its contours are debated and challenged.
