Freedom of expression protects the right of everyone to express themselves freely, whatever the form of expression. This means that the freedom of artistic expression is also protected.
Artistic expression and freedom of expression
In general, artistic expression is protected as being part of the general right to freedom of expression. This is the case of the European Court of Human Rights who considers that Article 10 of the Convention also protects artistic freedom, because it affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. In consequence, those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.
Artistic expression as an autonomous right
Other international and national texts protect artistic expression as an autonomous right independent of freedom of expression. For example, the European Charter of Fundamental Rights protects freedom of arts in a separate article from freedom of expression. Similarly, in France, artistic creation is protected in a special law independently of freedom of expression. This law states that artistic creation and its diffusion can be exercised freely, which means that there is no public censorship of this freedom. The French criminal code also protects artistic creation from private censorship as it condemns the act of obstructing, in a concerted manner and using threats, the exercise of the freedom of artistic expression.
The autonomy of this right can be explained by its specific nature and purpose. While freedom of expression concerns mainly the transmission of ideas and information, the purpose of artistic expression is to give an artistic form to ideas and information embodied in a work of art. Artistic creation therefore goes beyond the mere communication of ideas, it includes the entire creative process, going from the idea of the artist to its final form.
Protection of artistic expression
In reality, despite being guaranteed in a separate law, freedom of artistic expression is protected in a similar way to the general freedom of expression. French law states that the dissemination of artistic creation should be carried out in compliance with the principles of freedom of expression. Therefore, the right to artistic expression can be exercised freely unless it violates other rights that are equally important. The protection of this right is very broad as artistic expression includes works of art in all forms: paintings, the production of a play, films, songs, caricatures, music performances, satirical collages etc.
However, freedom of artistic expression sometimes benefits from a stronger protection. Indeed, in French law, the artistic dimension of a work can justify protecting the interests of the artist over other interests such as the others’ right to privacy. Because the protection of the rights of others and freedom of artistic expression are of equal value, a balance must be sought between them, and the most legitimate interest in a particular situation should be protected.
example In a case concerning a collection of photographs of people taken in the public space without their consent, the Court noted that, in the balance of rights, freedom of artistic expression had to be prioritized over the persons’ right to private life whenever the exercise of the latter would prevent arbitrarily the artist to express himself through his work.
Similarly, satire is considered to be a form of artistic expression and social commentary which, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate. Such form of expression plays a very important role in the free discussion of questions of public interest, without which there is no democratic society. Therefore, any interference with the right of an artist to use this means of expression should be examined with particular care.
example The criminal conviction of a political activist for insulting the French President by waving a satirical collage was considered disproportionate to the aim pursued and unnecessary in a democratic society.
Restrictions to artistic expression
Artistic creation often uses techniques such as exaggeration, metaphor or illusion to provoke reactions from the public. The use of these techniques is applied sometimes to sensitive or controversial subjects, which explains why certain limits are applied to artistic expression. This is the case of films who must be authorised by the Minister in charge of culture before being broadcasted. This authorisation can be refused or subject to conditions on grounds of child and youth protection or respect for human dignity.
Although freedom of artistic expression is strongly protected, it can sometimes be restricted when it exceeds certain limits. This is because artistic creation is more often subject to disputes involving morality, physical integrity, religion, violence, discriminations etc.
example In a case regarding an exhibition of human corpses that had opened in Paris, the Court found that this exhibition violated the right of deceased persons to be treated with respect and dignity. This exhibition was therefore prohibited.
When an artistic expression raises controversy, the difficulty lies in isolating in the work what results from fiction and what does not. This is often the case in disputes related to art which provokes discrimination and public insult towards certain groups of people.
example In a case concerning a song from a rapper that incited the public to commit violence against women, the court, while emphasising the artistic nature of the disputed work, noted that the lyrics were fictional and could not be attributed to the author but rather to a fictional character. The rapper was not convicted, and his artistic expression was protected.
example The same rapper was convicted for another song which this time contained an explicit and general call for violence against the police. The court considered that the work was not of a fictional nature, therefore justifying a criminal sanction.