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«The law restricts the freedom of expression in two important ways: (i) the laws of obscenity, and (ii) the laws of defamation. Because such ...»

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10. Restrictions on the Freedom of Expression

The law restricts the freedom of expression in two important ways: (i) the laws of

obscenity, and (ii) the laws of defamation. Because such restrictions are antithetical to the

creative freedom so important to art, they are both matters that should be of great concern

to artists. The law of obscenity is not mechanically complex, but it is so vague and

uncertain that its restrictive power is enormous. Because of legislative dissimilarities it is necessary to deal separately with each State. Discussion then turns to the role of “artistic merit” and concludes with some comments on the compliance with and enforcement of these laws. In contrast, defamation is an area of enormous legal complexity and few lawyers are expert in its intricacies. The following description discusses the components of defamation and its attendant defences of justification, fair comment and privilege.


It is said that “by one's work, so one is known”, and it is never truer than when said of artists. By creating, artists communicate, and in doing so expose both themselves and their ideas to the public. Unless they have the freedom, the right to create, they have nothing.

Thus the essential questions are: can the law force a person to create, to be an artist; and can the law prevent a person from creating, from being an artist? The answer is the product of fusing fundamental rights and contractual principles.

Everyone in Australia has the right to be an artist. No law permits it and no law forbids it.

The law may limit the ideas that one may express (e.g. by the laws of defamation), or restrict the vehicle used to express them (e.g. the laws of obscenity), but otherwise it will not generally interfere with an individual's right of expression. That freedom to express oneself is seen as a fundamental, if limited, right. Thus, for the most part, the law will not interfere with the decision to create or not create.

© Simpsons Solicitors Telephone: (61 2) 9247 3473 Suite 1202 Facsimile: (61 2) 9247 3442 135 Macquarie Street info@simpsons.com.au Sydney NSW 2000 Australia This general freedom may be limited by contract. For example, persons employed as graphic artists may sign a contract of employment, the terms of which prohibit them from doing work for competitors for the duration of the contract. If such an artist breached that term it might be possible for the employer to enforce it by obtaining an injunction (a court order restraining the activity).

In most cases, however, contract will not restrict the freedom to create. For example, if an artist agrees to paint a canvas on commission but later decides not to go through with the

deal, what options does the disappointed party have? He or she may seek:

• monetary damages;

• an order forcing the artist to complete the work; or

• an order prohibiting the artist from painting for anyone else until the work is completed.

But these options are illusory. It is almost certain that the artist would be ordered by the court to pay damages for the breach of the contract. But if the collector wanted the artwork rather than the money and tried to force the artist to complete the work, the courts would say: “This is a contract for personal services and as a matter of policy, the courts do not enforce such contracts. That would amount to servitude.” If the collector adopted the third option the court is likely to say: “To prevent a person from earning a livelihood in this way is a very serious measure. When the parties entered the contract they did not include any clause which forbade the artist from working on other pieces and in the absence of the parties including such an exclusivity clause, the courts are loathe to imply one. Furthermore, to grant such a prohibition would be a backdoor way of enforcing a contract for personal services and this the court will not do. Lastly, the court does not need to contemplate such extreme sanctions because the collector has a perfectly good remedy available, namely, damages.” © Simpsons Solicitors Telephone: (61 2) 9247 3473 Suite 1202 Facsimile: (61 2) 9247 3442 135 Macquarie Street info@simpsons.com.au Sydney NSW 2000 Australia This approach was exemplified in two famous cases; Bonheur v. Pourchet (Cour de Paris, 1865.2.201), and Whistler v. Eden (D.P. 1898.2.465, Cours d'appel, Paris). In the first case, Pourchet commissioned Rosa Bonheur to paint a work of specified size and manner. She agreed to do so but later refused to fulfil her bargain. Pourchet sought an order forcing her to complete the work, but the court rejected the application and granted damages instead.

In the second case, Whistler had been commissioned to paint the portrait of Lady Eden, the plaintiff's wife. The work was done, and prior to delivery to his Lordship it was exhibited at the Salon de Champs de Mars. Perhaps because of the favourable reception received by the painting, Whistler demanded that the commission price be raised before delivery would be made. As might have been expected, a dispute ensued. As might not have been expected, Whistler painted out the subject's head. Lord Eden sued. He sought an order that Whistler restore the painting and deliver it. He also sought damages.

The appeal court held that it would not order the irascible Whistler to restore and complete the canvas but instead awarded a sum of damages against him for his breach of contract.

It may be argued that the artist's freedom of expression is a fairly recent phenomenon, perhaps concomitant with the artist's role transition from tradesman to independent genius. Certainly, the restriction of creativity, of ideas, is not new. Moreover, the censors and their motives are extraordinarily diverse. There is the censorship imposed by religious organisations, such as that exemplified by Michaelangelo's troubles with Paul VI, Pius IV and Clement VIII: see Blunt, Artistic Theory in Italy 1450-1600 (1940), pp. 118-119.

The political regulation of artistic freedom is similarly easy to point out. That art can be “ideologically corrupt” is illustrated by the attitudes of Soviet Russia to “bourgeois” art, the Nazi restrictions upon “degenerate” art and the cultural stricture of the American “McCarthy period”.

Art institutions, too, play an important role in defining what is acceptable, for their acquisition policies are insidiously influential in determining what art will be seen by the

–  –  –

One of the most obvious tools of control is the legal system. Although we in Australia do not have laws which blatantly channel artistic expression, we do have several which can be subtly influential. The two that will be discussed in this chapter are the law of obscenity and the law of defamation. These are not as dramatic as some earlier forms of restriction, but restrictions they most certainly are.


“Not only is obscenity an inescapably subjective phenomenon but it represents an adverse judgment on at least three different grounds: aesthetic, moral and utilitarian”: Fox, The Concept of Obscenity (Law Book Co., Sydney, 1967), p.5. The aesthetic which distinguishes the artistic from the pornographic, the moral which provides the societal gauge that transforms the erotic into the obscene, and the utilitarian which suggests that the members of a healthy society enjoy only pure thoughts.

In Australia, two legal mechanisms operate to restrict the exposure of people to obscenity:

common law and statute.

1. The Common Law -- Obscene Libel At common law, it is a misdemeanour to “publish an obscene libel”. This has been described in Stephen, Digest of the Criminal Law (3rd ed., London, 1883), p. 116 in the

following terms:

“Everyone commits a misdemeanour who without justification... publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition; or any publication recommending sexual immorality, even if

–  –  –

In such proceedings, three things must be proved: the thing must have been published, be obscene, and be published with a criminal intention (that is, to corrupt public morals).

(i) Publication Publication is not to be given its colloquial meaning. It is used in its legal sense, to mean “communication to another person”. For example, an artwork would be published if it were merely shown to a prospective purchaser. Mere possession of the work would not be sufficient, for it is its “publication” not its possession that is subject to sanction: see Dugdale v. R. (1853) 1 E. & B. 435; 118 E.R. 499.

(ii) “Obscene” As to the definition of what is obscene, the starting point of any such discussion must be the old English decision of R. v. Hicklin (1868) L.R. 3 Q.B. 360 at 371. Therein, the judge

described obscenity in the following way:

“The test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” From this point, the dual concepts of “obscenity” and “the tendency to deprave and corrupt” were interwoven.

Attempts by the judges to give meaning to the phrase “tendency to deprave and corrupt” cannot be counted as great moments of jurisprudence. Indeed, as Windeyer J. once observed, the Hicklin test “has only survived really because, although constantly mentioned, it and its implications have been ignored. Courts have not in fact asked first

–  –  –

Many cases have decided what a “tendency to deprave and corrupt” does not mean. For example, the case of R. v. Martin Secker & Warburg Ltd [1952] 2 All E.R. 683, held it to mean more than “to shock or disgust”, and in Knuller v. D.D.P. [1973] A.C. 435, it was held not to correspond with the phrase “to lead morally astray”. But considerable difficulty lies in understanding the positive guidelines attempted by the courts.

Most cases give the words “tendency to deprave and corrupt” one of three meanings:

“First, they can mean that the tendency of the (work) is to arouse impure thoughts in the mind of the reader or the viewer. Secondly, they can mean that such a person would be encouraged to commit impure actions. Thirdly, they can mean that the reading of a book or looking at the picture would endanger the prevailing standards of public morals”: St John-Stevas, Obscenity and the Law (Secker & Warburg, London, 1956).

In Australia, the third of those categories has attained predominant judicial favour. For example, in Crowe v. Graham (1967) 121 C.L.R. 375 at 396, it was held that an indecent picture is one that is “an affront to modesty”. This is based on the belief that there “does exist in the community at all times however the standard may vary from time to time -- a general instinctive sense of what is decent and what is dirty”: R. v. Close [1948] V.L.R. 445 at 465.

In the latter case, Fullagar J. stated (at 463) that the “tendency to deprave and corrupt” was not to be taken as “a logical definition of the word ‘obscene’, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene, but is the characteristic which makes an obscene publication criminal.” Thus the tendency to deprave and corrupt is not to be taken as the sole test of what constitutes obscene libel. Rather, to prove the offence it will be necessary to show that the work is “both offensive according to current standards of

–  –  –

Both aspects of this two-limbed test may be influenced by the nature of the work (e.g. an artwork or medical text) and the manner and place of its exhibition.

(a) The nature of the work. The cases recognise that works of art enjoy a certain amount of licence. Thus it has been held that the “representation of nudity in what is not a work of art is not to be regarded as protected (merely) because similar realism in a work of art would not be regarded as indecent”: McGavan v. Langmuir 1931 S.C. (J.) 10 at 15. On the other hand, the issue of indecency cannot be answered by simply asking, “Is it art?” Had this been the relevant test, a photographic representation of Giorgione's “Sleeping Venus” would surely not have been found to be an indecent document: see Clarkson v. McCarthy [1917] N.Z.L.R. 624.

(b) The manner and place of exhibition. The manner and place of the work's exhibition is relevant to both limbs of the obscene libel test. As to the first (whether or not it is obscene, at all), suppose that a lithograph of erotic theme is exhibited in an art gallery and an identical image is hung in a school. The hypothetical community standard of what is decent would probably accept the former and condemn the latter. An artwork acceptable in the one place is obscene in the other.

As to the second limb (the tendency to deprave and corrupt), the manner and place of exhibition is directly related to the law's concern with who is likely to see the work and thus be influenced by it. So, in the above example, the patrons of an art gallery are considered less likely to be “depraved and corrupted” by the erotic work than the younger and, presumably, more impressionable school children.

(iii) Criminal intention It is a matter of considerable legal debate, whether or not the prosecution has to prove that the publisher of the obscene work actually intended to deprave or corrupt the viewers.

–  –  –

Whilst there is still no established causal link between obscenity and the tendency to deprave and corrupt, it must be remembered that the rule was based upon the Victorian rule of thumb that, for women, sex was an evil, that those who enjoyed sex were depraved, and those that might enjoy it were easy subjects of corruption. Such a view is no longer fashionable, but it remains the sole link between “obscenity” and the tendency to deprave and corrupt.

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