Guides to Interpretation

The complicated issues of how legal frameworks impact on artistic freedom of expression are explored in a new series of guides covering counter terrorism, public order, child protection, race and religion, and obscene publications.

The series, badged as Art and the Law, is jointly published by Index on Censorship (an independent registered charitable organisation based in the UK that promotes and defends the right to freedom of expression internationally) and Vivarta (a UK-based digital media news lab and advocate for free expression rights, especially in conflict zones and repressive states). The first three guides were published in July 2015, with the two remaining due in Autumn 2015; downloads are available at indexoncensorship.org/artandoffence.

These guides are a unique and welcome contribution to knowledge and understanding of these challenging issues in relation to art. Written by a team of well-known and respected specialist civil liberties law practitioners based in the UK (who gave their writing services to the publishers pro bono), the guides are ‘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’ and are aimed at assisting ‘artists, artistic directors, curators, venue management and trustees and others who seek to protect and promote artistic freedom of expression, especially whenplanning to programme challenging and controversial works’.

Extensive case studies exemplify and amplify each guide, and are separately posted on the Index on Censorship’s website. For the subject of child protection, the case study focuses on the controversy surrounding Richard Prince’s work Spiritual America, 1983, a re-photograph of Gary Gross’s original 1976 shot of ten-year-old Brooke Shields naked in a bath. The study addresses Tate Modern’s removal of the Prince work from its 2010 exhibition and catalogue, ‘Pop Life:Art in a Material World’; and the piece being re-photographed by Xenofon Kavvadias and exhibited in his final MA degree show at Goldsmith’s College as Spiritual America 2014.

Counter-terrorism censorship issues are illustrated by a case study of another comment on freedom of artistic expression by Kavvadias: a 2011 exhibition at the 10 Vyner Street gallery in London where books that ‘are or can be considered illegal under contemporary UK anti-terrorist legislation’ were displayed as an art installation. Kavvadias explicitly stated that the documents neither expressed his views nor had his endorsement; the exhibition lasted six weeks and did not suffer any ‘legal repercussions’.

The public order case study focuses on a theatrical installation, Exhibit B, scheduled to be presented by the Barbican Centre at the off-site venue The Vaults in Waterloo last September. The Barbican described Exhibit B as ‘a human installation that charts the colonial histories of various European countries during the 19th and 20th centuries’. The production had been performed in Berlin in 2012, where it was widely condemned.

A few weeks prior to the Barbican’s planned showing, it had been successfully performed at the Edinburgh International Festival, where the work was described as being somewhere between performance and exhibition: ‘13 tableau vivant installations featuring black performers look at the themes of racism, “othering” and the colonial history of Europe in Africa. The work, researched and created by South African artist Brett Bailey, addresses the hidden Curiosity Cabinets of European racism, focusing on the late 19th and early 20th centuries, when Europe’s powers scrambled for Africa’s rich resources, and the continent’s scientists formulated the pseudo-scientific racial theories that continue to warp perceptions, with horrific consequences.’

After the Edinburgh showing a campaign called Boycott the Human Zoo, which was ‘a coalition of anti-racism activists, trade unions, artists, arts organisations and community groups’, was formed in response toExhibit B and lobbied to prevent the work being shown at the Barbican. The production never opened and was completely cancelled by its organisers on the advice of the police (Artnotes AM381).

Self-censorship is a major issue addressed by the guides and accompanying case studies, not only by artists in their decision-making about the nature and content of works, but especially by exhibiting organisations and venues. Index on Censorship has previously conducted and published empirical research into the causes of self-censorship, which variously stem from ‘fear of causing offence, losing financial support, hostile public reaction or media storm, police intervention, prejudice, managing diversity and the impact of risk aversion’, adding that ‘many participants in our study said that a lack of knowledge around legallimits contributed to self-censorship’.

These five new guides aim to illuminate, explaining that freedom of expression is not an absolute human right; it has always been a qualified right. It is also subject to a wide range of international interpretations: from its inclusion in the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948 (now formally adopted by most nations and in many other subsequent international agreements and conventions and treaties including the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter of Human and Peoples’ Rights) – in all cases – the right to freedom of expression carries with it ‘special duties and responsibilities and may therefore be subject to certain restrictions when necessary for respect of the rights or reputation of others or for the protection of national security or of public order, or of public health or morals’. In other words, each nation/state that subscribes to these international human rights and enacts them into domestic laws can also pass laws restricting the exercise of human rights – as has been enacted by the UK (and other liberal democracies) via laws on counter terrorism, public order, child protection, race and religion, and obscene publications. Of course, many nation/states are not liberal democracies but are undemocratic authoritarian or totalitarian regimes whose restrictions on freedom of expression – artistic or otherwise – are often capricious and sometimes brutal. In the post-digital era, artistic works – not only but especially visual images – can be distributed instantly and worldwide, and this poses far greater risks of censorship than in previous ages.

Political, economic, social, technological, ethical, and legal factors all influence and affect behavioural norms that may be acceptable within societies during their evolution but which are nowadays considered repugnant, for example: the divine right of monarchs to rule, the slave trade, slavery itself, colonisation, subjugation of women and child labour. But just as the values of an era change, so does the context in which artistic expressions are received. Classical Greco-Roman artefacts graphically portraying sexual acts that might offend contemporary laws and moral values are treasured in the scholarly collections of museum and gallery institutions worldwide. Michelangelo’s 1541 Sistine Chapel fresco of The Last Judgement graphically depicting the seven deadly sins was subsequently ‘revised’ to clothe and drape naked figures that had became unacceptable to different values obtaining only two decades later. Marcel Duchamp’s installation work, Étant donnés, 1946-66, centrally featuring a naked and prone female torso, was developed and constructed by the artist in strict secrecy. He deliberately did not exhibit the work during his lifetime and instead bequeathed detailed written instructions to do so only after only after his death – possibly a modern example of self-censorship, reflecting his oft-quoted remark that ‘posterity gives a final verdict and sometimes rehabilitates forgotten artists’. Perhaps this is the ultimate manifestation of more enlightened censorship.

© Henry Lydiate 2015

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.