Freedom of Expression by Moira Jeffrey

Freedom of Expression by Moira Jeffrey Jed Hilton, Pandora's Vox, 2014

Introducing Moira Jeffrey as our new guest columnist. In the first of a series of opinion pieces she tackles the issue of freedom of expression in the arts

Moira Jeffrey
In the days and weeks after the shocking murder of staff and police at the office of Charlie Hebdo in Paris we’ve heard a lot of talk about free speech.

On the airwaves and online you might have heard that freedom of speech and freedom of expression are unassailable principles, or that, on the other hand, they are foolish fetishes that enshrine offensive and discriminatory behaviour. 

But if we step aside from the horror of Paris, where do we actually stand? If we take our guidance not from fear of terror, from shock 
or anger, but the actual legal framework, what is the reality for artists working across the UK? In our daily working lives how far can we go and how do we know? 

The answer for artists in the UK is probably that rights are one thing, but practicalities another.

Our framework for human rights is a product of the European Convention on Human Rights (ECHR), which was incorporated into UK Law in 1998, in England and Wales through the Human Rights Act (1998) and north of the border through the Scotland Act (1998).

These acts require public authorities to act within ECHR and allow for alleged breaches of human rights to be heard before UK courts. They also require that judgements, decisions and opinions of the ECHR are taken into account by domestic courts.

Article 10 of the ECHR gives everyone the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference of the state. It includes the right to communicate and to express oneself in any medium, including through words, pictures, images and actions (including through public protest and demonstrations).

But although we have the freedom to express our views and beliefs, we have a duty to behave responsibly and to respect other people’s rights. Public authorities may restrict our right to freedom of expression if they can show that their action has a proper basis in law, and is necessary and ‘proportionate’ for a number of specified reasons including to protect national security, or public safety, to prevent disorder or crime, to protect health or morals and to protect the rights and reputations of other people.

Thus freedom of expression can be limited by anything from anti-terror laws to equalities legislation. It may be permissible to restrict your freedom of expression if, for example, you express views that encourage racial hatred. However, the relevant public authority must show that the restriction is ‘proportionate’, and the restriction must be no more than is necessary and appropriate.

In truth, there have been so few recent cases about freedom of artistic expression in this country that there is no clear guide to the territory. In terms of external intervention artists are most likely to come up against intervention from the police in cases of alleged obscenity or indecency, like the threat by the Metropolitan police to seize images by photographer Tierney Gearon of her family from the Saatchi Gallery in 2001. A threat which was later withdrawn after advice by the crown prosecution service.

In fact galleries and museums have some specific exemptions under indecency laws, if they meet criteria about warnings and age limits and if exhibits are not visible from the street.

But where the line is drawn and how the law is enforced are complex matters. The decision of Tate, for example, to remove an image of Brooke Shields as a child from an exhibition in 2009 came not after public complaints but after a visit from the Met, which advised that the image would contravene the law. The Hayward Gallery’s decision not to show some Robert Mapplethorpe photographs of children back in 1996 could be argued as self-defeating self-censorship or as a sensible anticipation of the legal risk by a publicly funded gallery.

And artists must also bear in mind that while the law sets out a basic, but little-tested framework, public values around freedom of expression change. In recent years, for example, public mores have become far more sensitive when it comes to images of children. In the wake of recent debates about religious tolerance some legal scholars suggest that causing of religious offence will in future become rare and socially unacceptable, while others think that, in western countries at least, secularism will increase its occurrence.

But often censorship of artists' work is far more invisible. It can come through press and social media campaigns, through legitimate protest and illegitimate threat, through ‘institutional self-censorship’, through subtle pressures from sponsors and funders. Indeed concerns about the complexities of these issues led to Taking the Offensive, a conference and report by Index on Censorship in 2013 which was set up to defend freedom of artistic expression.

Often the law might be summed up as the artist has the right to do it, say it or show it, and the protestor has the right to object to it. The practicality is that subject to pressures from protestors, the press, the advice of the police or in rare cases threats, then organisations may sometimes choose security, community relations or reputation management over freedom of artistic expression.

Last year the Barbican cancelled public showing of a controversial theatre installation Exhibit B, on the subject of human zoos and historic human rights abuses, after public protests over allegations of racism. The work had been shown in more than 10 cities including during the Edinburgh Festival, where it received intense scrutiny and five star reviews. It’s very important to say that the Barbican cancelled the show citing the safety of the production team and did not accept that the show was racist.

When showing controversial works, relationships of trust are essential, and artists and curators working together should get to know their own territory and communities as well as their gatekeepers such as boards, local authority officials, local councillors. The relationship of trust is also a question of getting to know and supporting your audience too. Complaints about art works can arise from fear and ignorance as well as genuine anger, political will or desire for censorship. Context, education programmes and consultation can make the world of difference.

Where can you get help? Organisations like Liberty in England and Wales and the Scottish Council for Civil Liberties in Scotland campaign on these broad issues. Both jurisdictions have a Human Rights Commission. The Artquest website Artlaw is full of helpful articles, with the caveat that the law may have changed since some items were written.

If you work in an organisation, or are an artist concerned about working with institutions, the US National Coalition against Censorship has a helpful strategic toolkit including how to help an organisation prepare for controversy and how to deal with complaints. Index on Censorship’s report on its conference is a brilliant examination of the issues and a gauge of the current state of play.

Need a lawyer? Then the law societies of England and Scotland can find an expert in your field. The question of freedom and responsibility is not an easy one, but it should be examined with a clear head and anticipated. One can’t always control events, but it helps to be prepared.

Contributed by Moira Jeffrey, February 2015

Moira Jeffrey is a writer based in Glasgow. 

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