Julia Farrington: Tackling self-censorship in the arts community


Child Protection: PDF | web

Counter Terrorism: PDF | web

Obscene Publications: PDF | web

Public Order: PDF | web

Race and Religion: PDF | web

Case studies

Behud – Beyond Belief
Can We Talk About This?
Exhibit B
“The law is no less conceptual than fine art”
The Siege
Spiritual America 2014


Julia Farrington: Pre-emptive censorship by the police is a clear infringement of civil liberties
Julia Farrington: The arts, the law and freedom of speech
Ceciel Brouwer: Between art and exploitation
Tamsin Allen: Charging for police protection of the arts
Gurpreet Kaur Bhatti: On Behzti
Daniel McClean: Testing artistic freedom of expression in UK courts

Reports and related information

WN-Ethics14-140What Next? Meeting Ethical and Reputational Challenges

Read the full report here or download in PDFTaking the offensive: Defending artistic freedom of expression in the UK (Also available as PDF)

Beyond Belief190x210Beyond belief: theatre, freedom of expression and public order – a case study

UN report on the right to artistic expression and creation
Behzti case study by Ben Payne
freeDimensional Resources for artists
Artlaw Legal resource for visual artists
NCAC Best practices for managing controversy
artsfreedom News and information about artistic freedom of expression

These information packs have been produced by Vivarta in partnership with Index on Censorship and Bindmans LLP.

The packs have been made possible by generous pro-bono support from lawyers at Bindmans LLP, Clifford Chance, Doughty Street Chambers, Matrix Chambers and Brick Court.

Supported using public funding by Arts Council England

Julia Farrington, associate arts producer, Index on Censorship, participated in the Theatre UK 2016 conference on 12 May 2016. This is an adapted version of her presentation. 

In January 2013 I organised a conference called Taking the Offensive for Index on Censorship, in partnership with the Free Word Centre and Southbank Centre. The conference was held to debate the growth of self-censorship in contemporary culture, the social, political and legal challenges to artistic freedom of expression and the sources of these new challenges.

The report from the conference concluded that censorship and self-censorship are significant influences in the arts, creating a complex picture of the different ways society controls expression. Institutional self-censorship, which many acknowledged suppresses creativity and ideas, was openly discussed for the first time.

Lack of understanding and knowledge about rights and responsibilities relating to freedom of expression, worries about legal action, police intervention and loss of funding, health and safety regulations, concern about provoking negative media and social media reaction, and public protests are all causing cultural institutions to be overly cautious.

One speaker at Taking the Offensive suggested that we are fostering a culture where “art is not for debate, controversy and disagreement, but it is to please”.

There is above all, unequal access to exercising the right to artistic freedom of expression, with artists from black and minority ethnic encountering additional obstacles.

Many felt that far greater trust, transparency and honesty about the challenges being faced need to be developed across the sector; dilemmas should be recast as a necessary part of the creative process, to be shared and openly discussed, rather than something to keep behind closed doors. This will make it possible for organisations to come together when there is a crisis, rather than standing back and withholding support: “if we collectively don’t feel confident about the dilemmas we face how can we move on with the public?”

I think there have been significant changes in the three years since the conference and, whilst I think the same challenges persist, there have been some really positive moves to tackle self-censorship within the sector.  The growth of What Next? has created precisely the platform to debate and discuss the pressures, dilemmas and controversies that the conference identified. What Next? has produced guidance on navigating some of these issues and is developing more resources on how organisations can support each other when work is contested.

Index on Censorship responded to the clear call from the conference for the need for guidance about legal rights and responsibilities if we are to create a space where artists are free to take on complex issues that may be disturbing, divisive, shocking or offensive.

We have published information packs around five areas of law that impact on what is sayable in the arts: Public Order, Race and Religion, Counter Terrorism, Child Protection and Obscene Publications. They are available on the website under our campaign Art and Offence. These have been well received by the sector and read by CPS and police and we are developing a programme of training which will, if all goes well, include working with senior police officers.

At the same time, pressures from outside the sector have intensified.

The role of the police in managing the public space when controversial art leads to protest has come into sharp relief over the past two-three years where they have repeatedly “advised” venues to remove or cancel work that has caused protest or may cause protest.

I did a case study on the policing of the picket of Exhibit B at the Barbican in London which is available on the Index website; and in the same year, the Israeli hip hop opera the City was closed in Edinburgh on the advice of the police.

More worryingly the police “advice” has also led to the foreclosing of work that is potentially inflammatory – as in Isis Threaten Sylvannia an art installation by Mimsy, that was removed from an exhibition called Passion for Freedom from the Mall Gallery last year.

With the removal of Isis Threaten Sylvania, we see a shift from the police advising closure following protest to the police contributing indirectly or directly to the decision to remove work to avoid protest.

In this case freedom of expression was actually given a price — set at £7,200 per day for the five days of the exhibition — the price set by the police for their services to guarantee public safety.

The police took the view that a perfectly legal piece of art, which had already been displayed without incident earlier in the year, was inflammatory. And in the balance of things as they stand, this opinion outweighs:

  • the right of the artist to express him or herself;
  • the organisation’s right to present provocative political art;
  • the audience’s right to view it;
  • and those that protest against it, the right to say how much they hate it, including when that means that they want the art removed.

This new chapter in the policing of controversial art sets alarm bells ringing and represents a very dangerous precedent for foreclosing any work that the police don’t approve of.

But going against police advice is problematic.

In Index’s information pack on Public Order we asked our legal adviser, working pro bono, questions that many artists and arts managers are concerned about:

What happens if police advise you not to continue with presenting a piece of work because they have unspecified concerns about public safety – and yet tell you it is your choice and they can only advise you?
The artist would in principle be free to continue with the work. It would be advisable, however, to ensure that the reasons held by the police were understood. It may also be prudent to take professional advice…

And then what responsibilities for safety do employers have to staff and the public in relation to continuing with an artwork that has been contested by the police?
An organisation also has duties to their employees and members of the public on their premises. These duties may extend to making an organisation liable in the event of injury to a person resulting from the unlawful act of a third party if, for example, that unlawful act was plainly foreseeable – in other words the police have given their warning.

What are the options for an arts organisation to challenge police advice at the time of the protest itself?
If the organisation believes that it has grounds to challenge police directions to avoid a breach of the peace, it can seek to take legal action on an urgent basis. Realistically…legal action will not be determined until some time later and until it is determined by the courts, the organisation and/or its members or employees would risk arrest if they do not comply with police directions.

So – what starts out as police advice which implies genuine choice, on closer inspection transforms into a Hobson’s Choice where failure to follow that advice could lead to arrest.

On this evidence, both self-censorship and direct censorship are the undesirable outcomes of this as yet unchallenged area of policing.

But the Crown Prosecution Service has read and approved the packs and our law packs are in the system with the police.

The ideal policing scenario is to keep the space open for both the challenging political art and the protest it provokes. Both are about freedom of expression, what we have to avoid is the heckler’s veto prevailing.

Going back to other recent examples of censorship — questions remain about the role of the police in the decision to cancel Homegrown the National Youth Theatre production of a play about the radicalisation of young Muslims by writer Omar El-Khairy and director Nadia Latif. This was followed earlier this year by the presentation, without incident, of Another World: Losing our Children to Islamic State at the National Theatre, play on similar themes by Gillian Slovo and Nicolas Kent.

I mention Another World because it is important to state the obvious, that all the work that has been contested by the police and been cancelled, relates to work about race and religion and the majority of artists involved in work that has been foreclosed are from black and minority ethnic communities.

Looking through the lens of freedom of expression, each case of censorship gives a valuable opportunity to view a specific snapshot of relationships within society and to analyse the power dynamics operating there, both directly around the censored work — whose voices are and aren’t being heard in the work itself, and in the field and context in which the work is taking place and again looking at who is in control, who decides what voices are heard. I don’t have time here to go into an analysis of each case, but what emerges is that freedom of expression is, as it stands, a biased affair in the UK and I believe will remain so while our society and our culture are not equal.

As well as these new cases of censorship that we have seen since the 2013 conference, we have also seen new government policy, legislation and regulations which place increasingly explicit controls on what we can say and have a chilling effect on many areas of expression and communication, and interaction with government.

Many campaigners and charities see the Criminal Justice and Courts Act 2015 as designed to deter charities from intervening in judicial reviews — the most important legal channel we have to call authorities to account; the Investigatory Powers Bill, better known as the Snoopers’ Charter gives the surveillance state more powers; the Prevent Strategy requires us to police each other – surveillance and policing our neighbours — two nasty authoritarian tactics, and most recently the anti-advocacy clause would effectively ban organisations from using government funds for lobbying — stifling dissent. It was due to come into law on 1 May but the consultation period was extended and it might be kicked into the long grass.

The government has made it clear that it wants us to see ourselves predominantly if not exclusively as businesses and in response we have successfully made the case that the arts contribute massively to the economy.

But we know we are so much more. The arts are a vital, at best magnificent and effective player in civil society — especially when you define civil society as “a community of citizens linked by common interests and collective activity”.

With our core values and freedoms under attack, the arts and other civil society bodies are responding. The discussion about the role of the artist in taking on the big issues in society — from climate change to the refugee crisis — has, from where I stand, definitely intensified and gone up the agenda over the past three years, both here and internationally, as the pressure on our freedoms and values also intensifies domestically and internationally.

To fully participate in society and to create art that calls power to account, we need to continue to identify, analyse and tackle the causes of self-censorship within the sector, and stand together to enter into dialogue with the various agents of control that we identify in the process.

Art can help us imagine and bring about a more equal and just future.

Criminalising free speech: Index condemns summonsing of Bahar Mustafa

“We condemn the decision to summons Bahar Moustafa to court. Media reported on October 6 that Mustafa — who once wrote a tweet with the hashtag #KillAllWhiteMen — had received a court summons for malicious communications. Although we do not have the full details for this summons, it is clear that this particular remark by Mustafa posed no direct and imminent danger to anyone – and this is the only test that must be applied when considering limits to free expression. The charges demonstrate once again the problems with this piece of legislation, and others that criminalise free speech, and the way in which these laws are interpreted,” Jodie Ginsberg, CEO of Index on Censorship said.

Mustafa, an employee of the independent students’ union at Goldsmiths, University of London, has been ordered to appear at Bromley Magistrates’ Court on 5 November related to sending a threatening message between 10 November 2014 and 31 May this year, and one of sending a menacing or offensive message via a public network, between the same dates.

Grayling’s plans for tougher sentencing are unlikely to act as a deterrent to trolls

The UK Justice Secretary Chris Grayling has announced plans to increase the maximum prison sentence for online abuse, or trolling, to two years. Laws already exist for dealing with harassment and threats of violence, and the Crown Prosecution Service last year issued clear and strict guidelines on what kind of online speech constituted a crime. Calls for tougher sentencing are unlikely to act as a deterrent to trolls and could have a far more insidious effect — encouraging more arrests and prosecution for free speech that is neither threatening nor harassment, but which simply offends.

Keir Starmer advocates for cultural guidelines for police

Keir_Starmer_QC,_Director_of_Public_Prosecutions,_Crown_Prosecution_Service,_UK_(8450776372)Human Right’s lawyer, Keir Starmer, who has just completed a five year stint as Director of Public Prosecutions for the Crown Prosecution Service, has been active in drawing up guidelines for sensitive areas of criminal law.

Starmer attended a recent roundtable of arts executives Index on Censorship organised with Tate Britain.  It was part of our conference Taking the Offensive: Defending artistic freedom of expression in the UK.  Having heard for himself that self-censorship in UK museums, galleries and theatres is widespread, triggered by a complex range of pressures including the fear of prosecution and police intervention, Starmer advocated for the usefulness of CPS guidelines for artist expression.

The story of  how CPS guidelines came into being started shortly after Starmer joined the CPS as the DPP in 2008. It deals with one of the most morally sensitive areas of criminal law, that of assisted suicide. In the case of 23-year-old rugby playing student Daniel James, Starmer used his discretion not to prosecute Daniel’s parents for accompanying their son to the Dignitas clinic in Switzerland, where he died with them at his side.

Subsequently, Debbie Purdy, who suffers from MS, approached the DPP to find out if her husband would be prosecuted if he assisted her suicide. Her argument was that if he would be prosecuted, then, in order to protect him, she would have to travel to Switzerland by herself while she was still physically able to make the journey.  Effectively she would be shortening her life to avoid incriminating her husband. In response Starmer decided to draw up public facing guidelines laying out the factors the CPS would take into account to decide whether or to prosecute.  There would undoubtedly be evidence against Mr Purdy to prosecute but would it be in the public interest to do so?

This year, Starmer drew up guidelines for the social media in response to a tidal wave of cases and excessive prosecutions arising from tweets and Facebook comments, including Paul Chambers’, the defendant in the Twitter joke trial. The guidelines indicate that the bar is set high – that only tweets that are “more than grossly offensive” and or “made in cases of considerable sensitivity” — should be prosecuted. Starmer quoted the case of a tweet left on the tribute page to April Jones, saying it would be likely to be prosecuted.  The guidelines indicate that freedom of expression is well protected by the law, and the police are not going to get involved with every spate of offensive and abusive comments that litter the internet. As Starmer said – “you don’t need a law to protect expression that everyone agrees with”.

From a policing perspective the area of culture is uncharted. There is currently no guidance for policing cultural events, apart from a mention in Association of Chief Police Officers guidance regarding charging for costs associated with policing of music festivals and football matches.  The job of deciding if a work could be in breach of the law – for example child protection, obscenity legislation, race and religious hatred or public order – is done by the police, without guidance. Compare this to the amount of guidance around policing of protest, where on every page the right to protest is repeated and stressed, and has to be taken into account at every stage of policing.

No DPP can reassure an anxious artist director that a particular piece of art work is not going to be prosecuted, though Starmer did receive several letters asking for that reassurance.  But the CPS could produce guidelines for the arts and this is something that Starmer personally advocates, both as part of his general evangelism for the clarity and efficiency that guidelines achieve, and as a practical way to tackle self-censorship.

The guidelines would likely take account of the location and context of the artwork, the motivation and intention of the artist and how anyone involved in the making of the work had been treated, were permissions given, with particular scrutiny around the involvement of children and animals.  They would also, and this would be very interesting part of the exercise, look at the public interest of prosecution, which would inevitably involve a debate about the wider social benefit of art that challenges taboos and pushes boundaries, including where offence is caused.

Taking the social media guidelines as a model, it is reasonable to assume that the guidelines would set a high threshold and that the legal framework would in the main support the artist’s right to free expression. This common law approach is one of several rulings in support of freedom of expression is cited:

“Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level…” In Chambers v DPP [2012] EWHC 2157 (Admin), the Lord Chief Justice

If the guidelines were to similarly set a high threshold for artistic freedom of expression, it could go some way to dispel the fear of prosecution and it should give a clear steer to the police when dealing with art that causes offence.  In turn this would clarify the position of the arts executives when work is contested by audience, press or police and enable them to better defend their choices in the heat of a crisis.

It would also mean that people making decisions about what art goes into our public spaces could differentiate between legal and social boundaries of what is sayable.  The latter are more complex, mutable and volatile and in certain cases are patrolled by special interest groups, who actively want to silence artists whose work offends or challenges, often promoting the right not to be offended.

With the Common Law ruling in mind, arts guidelines as social media guidelines would not recognise the right not to be offended, though they do acknowledge that communication that is grossly offensive has in the end to be dealt with on a discretionary basis, quoting Lord Bingham “There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.” This would seem to suggest that there is a right not to be grossly offended.

So in the end we have come full circle, back to that idea that each case has to be taken as individual, and that the DPP would be called on to exercise their discretion about whether to prosecute.  But having said that the idea of guidelines is certainly very interesting and would at least put a clear line in the sand, in territory that is currently completely uncharted.

This article was originally posted at indexoncensorship.org