Freedom of Expression in the Arts and Media
Annamari Laaksonen, Sydney
Freedom of Expression in Peril – Lessons from History
Human beings differ from other species for their capacity of spoken and written expression. A distinctive feature of the human nature is the urge to express feelings and ideas, including in artistic forms. The word ‘freedom’ derives from the Old-English word freodom, but is also found in other old languages, e.g. as fridom (Old Frisian), vrijdom (Dutch) or vridom (German); it signifies power of self-determination; state of free will; emancipation from slavery. Its meaning related to civil liberty dates from late 14th century. The equivalent word ‘liberty’ meaning free choice, also dates to 14th century (Old French) and derives from the Latin word libertas, signifying a free man (derived from the adjective Liber, libera, liberum meaning free, independent). The term ‘expression’ has again Latin roots: The noun expressio derives from expressus and expressa meaning tangible and vivid, related to the noun exprimere, meaning ‘pressing out’. Since the early 17th century, expression has been considered as ‘an action or creation that expresses feelings’.
As strong as the desire to express and communicate opinions, ideas and artistic or intellectual creations has been throughout history, as strong has been the will to control these expressions. In ancient Greece, epic poet Homer supported free expression as did playwright Euripides (480–406 BC) several centuries later. However, others such as the lawmaker Solon (638–558 BC), who set the ground for democracy and the economic and political development of Athens, banned speaking against the dead and the living, especially if the latter held a public office. The trial of Socrates, sentenced to drink poison in 339 BC for his ‘corruption of youth and his acknowledgement of unorthodox divinities’ is probably the most famous case of state →censorship in ancient times. The lasting legacy of the rule of Pericles, the most prominent and influential Greek statesman was freedom of speech as the ‘defining distinction between Athens and Sparta’.
Before the Enlightenment, censorship has been widely practiced by governments and the church. In particular, the Catholic Church acted rigidly and harshly in opposing ideas perceived as subversive and heretical (quite similar to some authorities today which are guided either by →fundamentalism in their interpretation of religious laws or by the opposite: implacable →secularism). Following the invention and quick dissemination of the printing press in the mid-15th century, the church reacted with the introduction of the famous Index Librorum Prohibitorium. This first Index of prohibited books was ordered by Pope Paul IV in 1559 and subsequently published again 20 times before being abolished in 1966. In 1633, Galileo Galilei was hauled before the Inquisition because of confirming Copernicus’ theory on the earth revolving around the sun. Other victims of the Inquisition were Joan of Arc (1421) and Thomas More (1535). Outside Europe, the burning of the Maya Codices in the 16th century meant the loss of important cultural heritage and →literary expressions.
The licensing act of 1643 (Ordinance for the Regulating of Printing) introduced by the Parliament of England instituted a pre-publication censorship – a reaction to the rapid growth of newspapers and other printed media. In 1644, John Milton wrote ‘Areopagitica’, a pamphlet against licensing and censorship. Milton’s pamphlet is considered among the most quoted and influential defences of the freedom of expression. In his speech, Milton referred to Euripides and the ancient struggle for freedom of expression, and spoke of the liberty of conscience, knowledge and speech: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’ In 1689, the licensing act was overruled.
In the 17th and 18th century Europe, freedom of expression was reinforced in political and philosophical thinking as a measure of liberal progress. Freedom of expression, rights, liberties and dignity became consolidated in individualist thought, albeit with a marked political character. Sweden was the first country to officially abolish censorship and to guarantee freedom of the →press in 1766, followed by Denmark– Norway in 1770. After Milton, authors such as Jefferson, Bentham, Tocqueville, Mill, Kant and Voltaire defended freedom of expression. That influence poured into doctrinal statements of the time, which are some of the first declarations of human rights: the Virginia Declaration of Rights of 1776 and the Declaration of the Rights of Manand Citizen of 1789, a fundamental document of the French Revolution that includes freedom of speech. Mill´s On Liberty published in 1859 is a classic defence of the freedom of expression. However, it took until 1960 that Penguin Books won the right to publish Lady Chatterley’s Lover by D. H. Lawrence in the UK (previously banned because of its alleged →pornographic content).
The First Amendment of the US Constitution (one of the ten amendments that constitute the Bill of Rights), adopted in 1791, guarantees five freedoms: religion, speech, press, petition and assembly. It established one of the highest standards of freedom of expression in any constitution, but did not prevent e.g. the banning of the Adventures of Huckleberry Finn by several public libraries (1885).
The rise of totalitarianism in the 20th century had a profound impact on all freedoms and, particularly, on freedom of expression. In the Soviet Union, Stalin institutionalised censorship imposed by Bolsheviks by establishing a state censorship body, which hit not only political →dissidents but also many writers, intellectuals and →artists. For example, in 1962, Aleksandr Solzhenitsyn was sent to exile for the publication of One Day in the Life of Ivan Denisovich.
Inspired by Joseph Goebbels, Hitler’s minister for propaganda, students organised a massive book burning in 1933 to destroy books of Jewish and other authors considered ideologically not in line with the Nazi ideology and, therefore, ‘un-German’ – despite the fact that most of these authors were of German origin.
Freedom of Expression in Human Rights Instruments and Case-law
The United Nations General Assembly adopted, in its first session held in 1946, Resolution 59(I) which stated that ‘Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.’ Since freedom of expression is inherent in freedom of information, this general opinion can be seen as paving the way towards future international legal and political action.
Firstly, in 1948, the →Universal Declaration of Human Rights (UDHR) with its Article 19, which is still today considered to be the ‘preeminent international claim for freedom of expression’ (Democracy Web). This article reads as follows: ‘Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’, The subsequent International Covenant on Civil and Political Rights (ICCPR, 1966) guarantees freedom of expression in its Article 19(1) in the same words but ends that sentence with some further specifications, namely: ‘...either orally, in writing or in print, in the form of art, or through any other media of his choice.’ With respect to this article, the General Comment 34, issued in 2011 and replacing General Comment 10 on Freedom on Opinion, emphasises that ‘freedom of expression and opinion are the foundation stone for a free and democratic society and a necessary condition for the promotion and protection of human rights.’ This Comment addresses in detail issues of freedom of opinion and expression, media issues, the right of access to information and other questions.
Article 19(2) ICCPR also permits restrictions (expressly or implicitly) on grounds such as national security; public order; public health; morals; and the protection of the reputation, rights and freedoms of others. In that context, it is important to underline that these restrictions to the right can only be imposed subject to specific conditions. In particular, they a) must be provided by law, and b) necessary to achieve their intended goals. According to the UN Human Rights Committee, these ‘restrictions must be applied only for those purposes for which they are prescribed and must be directly related to the specific need on which they are predicated’ (General Comment No. 34, 2011). The laws upon which the restrictions can be placed must be formally recognised by lawmakers and do not permit ‘vague’ interpretations. In addition, Article 20 of the Covenant states that any propaganda for war or any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is (to be) prohibited by law – clearly another provision that is still not respected everywhere in the world.
It is significant that, even among professional circles in the arts and media, Article 19(1) ICCPR is more often taken as a reference for freedom of artistic expression than its counterpart in Article 15(3) of the →International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), which promises that states ‘undertake to respect the freedom indispensable for scientific research and creative activity’. This may have been caused by the fact that ‘freedom of expression’ is not explicitly mentioned in the text of this treaty. In addition, it may be due to the formula used in this clause, which calls for the ‘respect’ of freedom on the part of states or governments, but does not address, like in the wording of the ICCPR, ‘everyone’ directly, including artists, →journalists and other cultural or media professionals, with a guarantee for their right to freedom of expression. On the other hand, in its much more prominent Article 15(1)(a) the ICESCR stipulates ‘the right to of everyone to take part in cultural life’. This clause should not only be understood as a guarantee of access to the arts (which is also recognised in Article 27 UDHR), but correspondingly as a right to be active, alone or in community with others, in culturally diverse societies. With regard to freedom of expression it is, therefore, important to consider the potential relationship of both ICESCR provisions as a means to foster the development of civil societies that are aware of their cultural roots and, at the same time, open towards new experiences and willing to improve their →intercultural competence.
Among other UN treaties and declarations dealing with freedom of expression, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of UNESCO (2005) is an important document since it stresses, in the first of its Guiding Principles, that ‘cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed’ (Article 2(1)).
The Convention on the Rights of the Child (CRC, 1989) recognises the right to freedom of expression and information in the same terms as ICCPR Article 19. As with other rights of →children spelled out in greater detail in the treaty, this provision should be read with Article 5, which reminds states to ‘respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child’, thus including larger groups or communities in the task of safeguarding these rights. Article 17 CRC recognises access to information and material from a diversity of national and international sources. The provision calls on states to encourage access to ‘information and material of social and cultural benefit’ through mass media, children’s literature and international cooperation.
The Convention on the Rights of Persons with Disabilities (CRPD, 2006) intends to move from viewing persons with →disabilities as ‘objects’ towards seeing them as ‘subjects with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society’ (UN Division for Social Policy and Development). The rights to freedom of expression and information of people with disabilities are recognised in Article 21 CRPD. The Convention specifies some of the measures needed and makes clear that positive measures and not only non-interference are required to ensure the enjoyment of these rights, including e.g. ‘facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice.’
On the European level, the →European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, 1953) underlines, in its Article 10(1), the right of everyone 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’..., but it does ‘not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.’ The ECHR, in Article 10(2), sees this right connected with ‘duties and responsibilities’ and mentions, similar to the ICCPR, but in even greater detail, a number limitations that could affects its exercise, including: ‘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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
However, as freedom of expression is a fundamental right, the laws or regulations limiting it must be truly necessary and the aims need to be legitimate. The →European Court of Human Rights (ECtHR), implementing in its case-law its ‘principle of evolutive or dynamic interpretation’ (Greer, 2000), underlined, as early as 1976: that ‘Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man ... it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.’ [HANDYSIDE, 1976]. In this context, the ECtHR called for ‘pluralism, tolerance and broadmindedness’, which are indispensable for a ‘democratic society’ and, clearly, also a lifeline for the arts and media.
Cases before the ECtHR addressing issues of freedom of expression are numerous. For example, the Court [in VEREINIGUNG BILDENDER KÜNSTLER, 2007] recognised that the prohibition by domestic courts of exhibiting a painting depicting a politician of the Austrian Freedom Party in an unfavourable manner was ‘disproportionate to the aim it pursued and therefore not necessary in a democratic society within the meaning of Article 10 § 2 of the Convention’, also reminding the national authorities that satire ‘naturally aims to provoke and agitate’, so any restrictions should be carefully examined. In [THE SUNDAY TIMES, 1979], the court accepted that there was a violation to freedom of expression when in 1972 the newspaper prepared to publish an article about the investigation of the origins of the ‘thalidomide children’ case in whicha British drug company had manufactured and distributed a drug containing an ingredient known as thalidomide. The Attorney-General had applied for an injunction restraining publication of the article on the ‘grounds that it would constitute contempt of court’. The restriction was lifted in 1976. In [THE OBSERVER and GUARDIAN, 1991], the Court recognised a violation of freedom of expression in the case of two newspapers publishing short articles about details of a publication called Spycatcher that describes unlawful activities of the British Security Service. The government succeeded in obtaining an injunction preventing further publication until proceedings relating to a breach of confidence had been concluded. The ECtHR stated that although the injunction was lawful, as it was in the interest of national security, once the book had been published, there was insufficient reason for continuing the publication ban. On the other hand, the Court also held that limitations to artistic freedom of expression may be legitimate on grounds similar to those applied to other forms of expression, such as offending religious feelings [OTTO-PREMINGER-INSTITUT, 1994] or the protection of morals [MÜLLER AND OTHERS, 1988].
Freedom of expression is also protected by the →Charter of Fundamental Rights of the →European Union, covering culture with regard to freedom of speech (Article 11) and artistic freedom (Article 13). The →Court of Justice of the EU has linked, in its case-law, freedom of expression with the maintenance of media pluralism [UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA, 2007], underlining its importance as one of the fundamental rights guaranteed by the Community legal order.
A Permanent Challenge: Freedom of artistic creation and of the media
Artistic freedom and freedom of expression are indispensable for arts practice. In this respect, non-binding standard-setting instruments such as the UNESCO Recommendation concerning the status of the artists (1980) have so far proved to be of limited effect. The 2013 Report of the (then) Special Rapporteur in the field of cultural rights, Farida Shaheed, entitled: The right to freedom of artistic expression and creativity, recognises that censorship still has a profound, negative impact on arts practice in many parts of the world. The report also builds links between freedom of →cultural expressions and other human rights including freedom of →assembly and association, →authors’ rights and leisure. 53 UN member states reaffirmed the right to creative and artistic expression at the meeting of the Human Rights Council in its 30th session of 18 September 2015.
Even if censorship in the strict, institutional sense may have loosened or became obsolete due to the global success of the Internet and →social media, governments maintain, or even newly introduce, certain restrictions regarding freedom of expression, now based on legislative acts aiming to address national security, criminal acts or →obscenity and →blasphemy. As regards the latter, the fatwa against Salman Rushdie, issued by Ayatollah Khomeini (Iran) over the alleged ‘blasphemous’ content of his novel, The Satanic Verses, gained particular attention. While this fatwa was lifted in 1998, the global uproar caused by controversial →caricatures such as the so-called Muhammad cartoons published in a Danish newspaper in 2005, the massive prosecutions of →press editors and bloggers on doubtful grounds of →defamation of state authorities (e.g. in Turkey) and the worst-case scenario of terror attacks against the French magazine Charlie Hebdo in 2015 demonstrated, how topical such issues still are – and how even the life of journalists, artists and other creative professionals can be endangered, if they don’t resort to conformance or self-censorship. Similar threats can also affect media →producers, independent as well as →public broadcasting stations, publishing houses or representatives of museums and other heritage institutions.
In 2015, the Freemuse annual report recorded censorship and threats on artistic freedom in over 70 countries. These include 469 cases of censorship and attacks on artists. According to this report, musicians and creators in the field of music are particularly in danger of being harassed or persecuted, probably due to the popularity their work can gain via diverse media channels or at stage events, especially in the younger generations.
Freedom of expression can also be compromised by state or commercial surveillance practices that undermine →privacy, by measures of →Internet content suppression or by security laws. For example, the 2006 (counter-) Terrorism Law in the United Kingdom criminalises any publication or public statement that is considered to ‘encourage acts of terrorism, including statements that glorify specific terrorist acts, even if the individual of group making the statement did not actually intend to encourage terrorism’. In this law, terrorism is defined to include ‘any political, religious, racial or ideological case designed to influence the government of any country or international organisation or to intimate any member of the public anywhere in the world.’ In 2014, Russia issued a law to block ‘extremist’ websites that could be interpreted to encourage mass riots or publishing harmful content to the public.
In contrast, some countries try to progress towards more artistic and media freedom by introducing new legislation – or promoting the absence of control mechanisms. An example of the latest modifications of existing measures is France where, on 25 May 2016, the Senate approved a law related to freedom of creation, architecture and heritage (modified in its 10th lecture by the National Assembly). Iceland, followed by Estonia, has the fewest barriers to Internet freedom, according to a recent study of Freedom House, ranking countries based on obstacles to access, limits on content and violations of user rights.
Without doubt, civil society, with watchful NGOs, arts councils at arm’s length from governments as well as transparent professional associations in the domains of the arts and the media have proven to be the best advocates for freedom of expression and cultural diversity. However, we should not neglect the difficulties this entails in times of economic globalisation that sometimes tends towards a standardisation of media content; the new rise of autocratic forms of leadership in a number of countries; populist reactions against increasing migration; as well as extremism and widespread terrorist attacks.
Therefore, the guarantees provided by international or regional human rights instruments and national constitutions; the complaints procedures offered by the respective courts or treaty bodies; the monitoring of new developments conducted by regional intergovernmental organisations such as the →Council of Europe (with regard to human rights compliance, cultural policies and heritage protection) or →OSCE (with regard to media freedom) as well as the reports of Special Rapporteurs in the UN system should be seen as more than last resorts, since their standards can serve as strong blockades once freedom of expression and information is at risk. In addition, a number of UN human rights treaties – including inter alia ICCPR, CESCR, CRC and CRPD – receive and consider individual complaints or communications from civil society, submitted, like in the case of CESCR, ‘by or on behalf of individuals or groups of individuals, ...claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant’ by state authorities in a country that is a party to the treaty (UN General Assembly Resolution A/RES/63/117, 2008). If such opportunities would be used more frequently by civil society stakeholders, the development of a human rights culture could definitely progress, including as regards freedom of expression in the arts and media.
REFERENCES:
Farrington, Julia: Beyond belief. Theatre, freedom of expression and public order – a case study, Index on Censorship, 2011.
Freedom House: Freedom of the Press 2016, Annual Report, Washington, available at www.freedomhouse. org (accessed 07/2016).
Freemuse: Art Under Threat. Freemuse Annual Statistics on Censorship and Attacks on Artistic Freedom in 2015, available at http://artsfreedom.org/ (accessed 07/2016).
Greer, Steven: The Margin of Appreciation: Interpretation and Discretioon under the European Convention on Human Rights, Human rights files No. 17, Strasbourg: Council of Europe Publishing (2000).
ICNL – International Center for Not-for-Profit Law: Global Trends in NGO Law: “The Right to Freedom of Expression: Restrictions on a Foundational Right”, Vol. 6, 1 (2015). Available at http://www.icnl.org/research/trends/trends6-1.pdf (accessed 07/2016).
Milton, John: “Areopagitica”, in Early Censorship in England, Bridwell Library (2000).
Puddphatt, Andrew: Freedom of Expression, the Essentials of Human Rights, Hodder Arnold (2005).
Smith, David and Torres, Luc: “Timeline: a history of free speech”, The Guardian. 5. 2. 2006.
UN Human Rights Committee: General Comment No. 34 – Article 19 Freedom of opinion and expression, CCPR/C/GC/34 (2011).
UN Human Rights Council / Special Rapporteur in the field of cultural rights, Farida Shaheed: The right to freedom of artistic expression and creativity, Geneva, A/HRC/23/34 (2013).
Van Mill, David: “Freedom of Speech”, Stanford Encyclopedia of Philosophy (2014).
HANDYSIDE v. UNITED KINGDOM (ECtHR 07/12/1976, 5493/72).
MÜLLER and OTHERS v. SWITZERLAND (ECtHR 24/5/1988, 10737/84).
OTTO-PREMINGER-INSTITUT v. AUSTRIA (ECtHR 20/9/94, 13470/87).
R v. PENGUIN BOOKS (UK, 02/11/1960).
THE OBSERVER and GUARDIAN v. UNITED KINGDOM (ECtHR 26/11/1991, 13585/88).
THE SUNDAY TIMES v. UNITED KINGDOM (ECtHR 26/04/1979, 6538/74).
UNITED PAN-EUROPE COMMUNICATIONS BELGIUM SA AND OTHERS v. BELGIAN STATE (CJEU 13/12/2007, C-250/06).
VEREINIGUNG BILDENDER KÜNSTLER v. AUSTRIA (ECtHR 25/1/2007, 68354/01).