Artistic freedom (or freedom of artistic expression) can be defined as "the freedom to imagine, create and distribute diverse cultural expressions free of governmental censorship, political interference or the pressures of non-state actors." Generally, artistic freedom describes the extent of independence artists
obtain to create art freely. Moreover, artistic freedom concerns "the
rights of citizens to access artistic expressions and take part in
cultural life - and thus [represents] one of the key issues for democracy."
The extent of freedom indispensable to create art freely differs
regarding the existence or nonexistence of national instruments
established to protect, to promote, to control or to censor artists and
their creative expressions. This is why universal, regional and national
legal provisions have been installed to guarantee the right to freedom of expression in general and of artistic expression in particular. In 2013, Ms Farida Shaheed, United Nations Special Rapporteur to the Human Rights Council, presented her "Report in the field of cultural rights: The right to freedom of expression and creativity" providing a comprehensive study of the status quo
of, and specifically the limitations and challenges to, artistic
freedom worldwide. In this study, artistic freedom "was put forward as a
basic human right that went beyond the 'right to create' or the 'right to participate in cultural life'."
It stresses the range of fundamental freedoms indispensable for
artistic expression and creativity, e.g. the freedoms of movement and
association. "The State of Artistic Freedom" is an integral report published by arts censorship monitor Freemuse on an annual basis.
Definition of artistic freedom
Repeatedly, the terms artistic freedom and freedom of artistic expressions are used as synonyms. Their underlying concepts "art", "freedom"
and "expression" comprise very vast fields of discussion: "Art is a
very 'subtle' - sometimes also symbolic - form of expression, suffering
from definition problems more than any other form."
As a result, "[i]t is almost impossible to give a satisfying definition
of the concept art. It is even more difficult to define the concepts
artistic creativity and artistic expression." UNESCO's 2005 Convention on the Diversity of Cultural Expressions
defines cultural expressions as "those expressions that result from the
creativity of individuals, groups and societies, and that have cultural
content"
while the latter "refers to the symbolic meaning, artistic dimension
and cultural values that originate from or express cultural identities."
In the context of the freedom of (artistic) expressions, "[t]he word
expression in the first instance refers to verbalisation of thoughts."
Freedom of artistic expression "may mean that we have to tolerate some
art that is offensive, insulting, outrageous, or just plain bad. But it
is a small price to pay for the liberty and diversity that form the foundation of a free society."
Officially, UNESCO defines artistic freedom as "the freedom to imagine,
create and distribute diverse cultural expressions free of governmental
censorship, political interference or the pressures of non-state
actors. It includes the right of all citizens to have access to these
works and is essential for the wellbeing of societies." UNESCO puts forth that "artistic freedom embodies a bundle of rights protected under international law." These include:
- The right to create without censorship or intimidation;
- The right to have artistic work supported, distributed and remunerated;
- The right to freedom of movement;
- The right to freedom of association;
- The right to the protection of social and economic rights;
- The right to participate in cultural life.
Legal frameworks to protect and promote artistic freedom
Legal frameworks to protect and promote artistic freedom reflect the
conviction that "[c]ulture constitutes one process of, and space for,
democratic debate. The freedom of artistic expression forms its
backbone. There is compelling evidence that participation in culture
also promotes democratic participation as well as empowerment and
well-being of our citizens."
Farida Shaheed wrote: "Artists may entertain people, but they also
contribute to social debates, sometimes bringing counter-discourses and
potential counterweights to existing power centres."
Moreover, she emphasized that "the vitality of artistic creativity is
necessary for the development of vibrant cultures and the functioning of
democratic societies. Artistic expressions and creations are an
integral part of cultural life,which entails contesting meanings and
revisiting culturally inherited ideas and concepts."
According to Freemuse, "[p]opulists and nationalists, who often portray
human rights as a limitation on what they claim is the will of the
majority, are on the rise globally. As this phenomenon rises, artists
continue to play an important role in expressing alternative visions for
society." This is why "artists are sometimes responsible for radical criticism." As a result, artistic expressions and artists are suffering censorship and violations worldwide.
"Artists are among the first to be silenced by repressive regimes: the poets, playwrights and painters who challenge the status quo are often lone workers, and as such easy targets for an authoritarian state or violent oppressor. When their views fail to accord with the mainstream, the artist is also vulnerable to the censorship of the mob. That is why it is vital that artistic expression is protected."
Freemuse's 2016 report "Arts under threat" shows that "[i]t is not
only governments violating the right to artistic freedom. 2016 saw a
worrying amount of actions by non-state actors, ranging from militant
extremists to peaceful community groups, against art and artists. In
some incidences, authorities censored artists based on requests or the
interference from civil society groups."
Based on this development, "[m]ajor sources of international law across
the board recognize freedom of artistic creativity explicitly, or
implicitly, as an inherent element of the right to freedom of
expression. In these instruments, the individual right to express ideas
creatively is often irrevocably linked with the right to receive them."
The growing importance of artistic freedom as a specific right is
reflected by the introduction of the role of the UN Special Rapporteur
in the field of culture in 2009, and other rapporteurs, notably the
Special Rapporteur on freedom of expression.
UN instruments
Artistic freedom as a specific right
According
to Farida Shaheed, the most explicit legal provisions protecting the
right to the freedom indispensable for artistic expression and
creativity are the following:
- Article 15 (3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR): States "undertake to respect the freedom indispensable for ... creative activity";
- Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR): "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information (...) in the form of art, or through any other media of his choice."
- Article 13 and 31 of the Convention on the Rights of the Child;
- Article 13 (1) of the American Convention on Human Rights (ACHR);
- Article 14 of the ACHR Protocol in the area of Economic, Social and Cultural Provisions;
- Article 42 of the Arab Charter on Human Rights;
- Article 27 (1) of the Universal Declaration of Human Rights (UDHR): the universal right "to enjoy the arts";
- Article 49 of the Case of Karataş v. Turkey by the European Court of Human Rights (ECtHR) emphasizes that the "[freedom of artistic expression] (...) affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. (...) 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. Hence there is an obligation on the State not to encroach unduly on the author's freedom of expression."
In September 2015, 57 UN Member States reaffirmed the right to
freedom of expression including creative and artistic expression through
a joint statement. Additionally, in 2015, the Carthage Declaration on the Protection of Artists in Vulnerable Situations was adopted in Tunis.
Artistic freedom as a pillar of the right to freedom of expression
The
following legal instruments do not specifically mention artistic
freedom but rather understand it as a pillar of freedom of expression in
general related to freedom of thought, conscience and religion. They
aim to guarantee the right to freedom of expression or the right to participate in cultural life without specific reference to the arts.
- Article 19 of the Universal Declaration of Human Rights (UDHR);
- Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- Article 9 and 17 of the African Charter on Human and Peoples' Rights;
- Article 32 of the Arab Charter on Human Rights;
- The right "to seek and develop cultural knowledge and expressions and to share them with others, as well as to act creatively and take part in creative activity" formulated by the Committee on Economic, Social and Cultural Rights;
- Article 10 of the European Convention on Human Rights (ECHR).
UNESCO instruments
1980 UNESCO Recommendation Concerning the Status of the Artist
Artistic freedom first appeared as a distinct right in UNESCO's 1980 Recommendation concerning the Status of the Artist
underlining "the essential role of art in the life and development of
the individual and of society' and the duty of States to protect and
defend artistic freedom."
Although not a binding instrument, the Recommendation is an important
reference in defining artists' rights across the spectrum worldwide. The
1980 Recommendation serves as a reference for policy development and as
a basis for new formulations of cultural policies.
"Member States, recognizing the essential role of art in the life and development of the individual and of society, accordingly have a duty to protect, defend and assist artists and their freedom of creation. For this purpose, they should take all necessary steps to stimulate artistic creativity and the flowering of talent, in particular by adopting measures to secure greater freedom for artists, without which they cannot fulfill their mission, and to improve their status by acknowledging their right to enjoy the fruits of their work."
2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions
The 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions
acknowledges that "the diversity of cultural expressions can only be
promoted if human rights and fundamental freedoms are guaranteed."
A guiding principle of the 2005 Convention is 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."
In this context, governance of culture refers to policies and measures
governments establish to promote and to protect all forms of creativity
and artistic expressions. The most recent UNESCO Convention in the
field of culture and ratified by 146 Parties, it frames the formulation
and implementation of different types of legislative, regulatory,
institutional and financial interventions to promote the emergence of
diverse cultural and creative industry
sectors around the world. As a result, it aims to ensure participation
in cultural life and to support access to diverse cultural expressions (film, music, performing arts, etc.). The progress and challenges in implementing the Convention is monitored through its Global Report Series Re|Shaping Cultural Policies.
National legislative measures to promote artistic freedom
Similar
to the aforementioned universal instruments to protect artists and
artistic freedom, "[i]n national constitutions (...), freedom of
artistic creativity is often located within the strongly-protected right
to freedom of expression." Certain countries also "recognize the freedom of artistic expression within the ambit of the right to science and culture." The following national legislative measures are listed in alphabetical order. The list is to be completed.
Burkina Faso
Adopted on 23 May 2013 by "Direction générale des arts (DGA)", the decree "Décret portant statut de l'artiste au Burkina Faso"
envisages improving the social protection and the living conditions of
artists, particularly the social security of employed artists and
freelancers, the return of social contributions of artists and the
complement dispositive for mutual accountability.
Canada
In Canada, the Canadian Charter of Rights and Freedoms protects artistic expression.
France
In July 2016, France amended its legislation in order to extend it with the legal protection of artistic freedom, architecture and heritage.
For the first time in international law, artistic expressions are
established as public goods and the "dissemination of artistic creation
is free". This implies not only that artists are free to create but also
that the wider public has access to it. As a result, art and artistic expressions cannot be censored or simply excluded from exhibits and other events.
Germany
Article 5 of the German Basic Law
contains a special paragraph that connects the right to freedom of
expression with the right to freely develop the arts and sciences."
Mexico
On 19 June 2017, Mexico published its "Ley General de Cultura y Derechos Culturales"
promising strong protection for artistic freedom and artists and
cultural professionals, a provision specifically needed given the
alarming conditions under which Mexican artists, journalists and
cultural professionals currently work.
Spain
On 6 September 2018, the Spanish Congress of Deputies
unanimously ratified a proposal assigned to elaborate a "Estatuto del
Artista y del Profesional de la Cultura". Broadly, the decree aims to
protect and promote artists with regard to taxation, their work security
and legal protection.
Sweden
Article 1 (2) of the Swedish Fundamental Law
explicitly includes the freedom of artistic creation as part of the key
purposes of freedom of expression: "The purpose of freedom of
expression under this Fundamental Law is to secure the free exchange of
opinion, free and comprehensive information, and freedom of artistic
creation."
Togo
On 20 June 2016, Togo
adopted its "Statut de l'artiste". Its major objective is to
acknowledge artists as individuals and their moral role in society,
their contributions towards the intellectual sphere protected by
copyright. It defines the rights and duties linked to artistic
professions and aims to promote creativity and to protect artists
socially.
Tunisia
Adopted in 2014, article 42 of the Tunisian Constitution
states: "The right to culture is guaranteed. The freedom of creative
expression is guaranteed. The State encourages cultural creativity and
supports the strengthening of national culture, its diversity and
renewal, in promoting the values of tolerance, rejection of violence,
openness to different cultures and dialogue between civilizations."
United States of America
In the U.S., the first amendment protects artistic expression.
According to the Court, freedom of artistic creativity is an element of
the respect for freedom of self-expression, one of the core values of
the First Amendment. However, the U.S. Supreme Court
has never considered artistic freedom as a distinct category akin to
political or commercial speech: "it rather addresses the various forms
of art in their relation to the First Amendment on a contextual basis."
Challenges to artistic freedom
The International Cities of Refuge Network (ICORN) explains the purpose of its existence with the following statement:
"Writers and artists are especially vulnerable to censorship, harassment, imprisonment and even death, because of what they do. They represent the liberating gift of the human imagination and give voice to thoughts, ideas, debate and critique, disseminated to a wide audience. They also tend to be the first to speak out and resist when free speech is threatened."
Freemuse's report (2018) demonstrates that artistic freedom "is
being shut down in every corner of the globe, including in the
traditionally democratic West. According to Freemuse's 2016 report, the
music industry is the main target of serious violations, and second to
film in overall violations, including non-violent censorship. The most serious violations included the murder of Pakistani Qawwali singer Amjad Sabri and the killing of Burundi musician Pascal Treasury Nshimirimana. In 2019, Karima Bennoune,
UN Special Rapporteur in the field of cultural rights, underlines that
"the freedom of artistic expression and creativity of persons with
disabilities, women or older persons"
remains significantly restricted. She states that "many cultural rights
actors have not incorporated a gender perspective into their work,
while many women's rights advocates have not considered cultural rights
issues."
Referring to Freemuse's 2016 report, UNESCO stresses that "laws dealing
with terrorism and state security, defamation, religion and
'traditional values' have been used to curb artistic and other forms of
free expression."
Moreover, new digital technologies, including social media
platforms, are challenging artistic freedom: "Art in the online and
digital space continues to challenge authorities and corporations who
are quick to react by closing down expression rather than using it as an
opportunity to foster it." Social media and music streaming channels, like Instagram and SoundCloud
are becoming the platforms on which artists publicly display and
promote their work. However, they also bring with them threats to rights
and freedoms. Online trolls often intimidate artists to withdraw their work. Additionally, growing digital surveillance has a corrosive effect on artistic freedom.
Many platforms have established mechanisms, such as Instagram's
guidelines on 'standards of behavior' whose formulations are very vague.
This provides disproportionate power to individuals and organizations
who use the platform's reporting processes to get individual artworks
removed, and sometimes entire accounts blocked. In addition, the impact
of algorithms
on diversity of content is another area of concern: platforms display a
plethora of cultural offerings, but also control not only sales but
also communication and the recommendation algorithms (e.g. adapting
offered content to the profile of each internet user). These algorithms
finally serve to promote certain contents while oppressing others.
In conclusion, new digital technologies - while providing a
platform for the distribution of artistic content - may interrupt the
flow of ideas of artists and curtail their artistic freedom.
In the 10th Anniversary UN Report on Cultural Rights, Ole Reitov,
former exectutive director of Freemuse, underscores the progressive
fact that "artistic freedom is no longer a 'marginalized' issue in the
'world of freedom of expression'". Since Farida Shaheed's report and inspired by lobbying from arts and human rights NGOs, efforts to promote artistic freedom have multiplied across the entire United Nations
system: "The UN Universal Periodic Review provides an opportunity for
NGOs, among others, to make submissions on States' failures to meet
human rights standards, including artistic freedom. New calls for a UN
Action Plan on the Safety of Artists and Audiences (similar to the one
for journalists) have been put forward." As UNESCO's Global Report "Re|shaping Cultural Policies"
(2018) shows, the number and capacity of organizations monitoring
artistic freedom is increasing. "In this domain as well, cities are
taking valuable initiatives by providing safe havens for artists at
risk."
As the list above shows, "measures to support the economic and social
rights of artists are appearing increasingly in national legislation,
especially in Africa."
Monitoring artistic freedom
Despite
the progress made and legal instruments established to promote and
protect freedom of artistic expressions, "there is urgent need for
monitoring and surveillance, essential if these freedoms are to become a
permanent reality."
Karima Bennoune notes that the increasing number of reported attacks
perpetrated by State and non-State actors against cultural professionals
reflects the boosting capacity of monitoring artistic freedom. She states the UNESCO global reports
monitoring the implementation of the 2005 Convention on the Protection
and Promotion of Cultural Expressions have been "[o]f particular
relevance". The reports provide a monitoring framework comprising four overarching goals to enhance cultural policies worldwide.
One of these goals aims to "Promote Human Rights and Fundamental
Freedoms" and encompasses artistic freedom as an "area of monitoring"
incorporating core indicators to measure achievements regarding the
rights and protection of artists. Additionally, the framework relates artistic freedom to the Sustainable Development Goal (SDG) 16 of the UN 2030 Agenda,
which aims to "'Promote peaceful and inclusive societies for
sustainable development, provide access to justice for all and build
effective, accountable and inclusive institutions at all levels".
Specifically, the SDG's target 16.10 aims to "ensure public access to
information and protect fundamental freedoms, in accordance with
national legislation and international agreements".
Sustainable Development Goal (SDG) 16
Additionally, there are many other initiatives advocating and
monitoring artistic freedom. Alongside other organizations documenting
violations against freedom of artistic expression (such as Arterial Network, Artists at Risk Connection, PEN International and the International Federation of Library Associations and Institutions),
Freemuse is an independent international organization particularly
monitoring the freedom of expression of musicians and composers
worldwide. "Freemuse's reports collated from all over the world show
that artists are increasingly facing censorship, persecution,
incarceration or death, because of their work."
In order to monitor the actions taken to implement the 1980
Recommendation concerning the Status of the Artists, the Secretariat of
the 2005 UNESCO Convention (see below) runs a global survey every four
years gathering information from Members States, NGOs and INGOs and
prepares a report, which is then submitted to the General Conference.
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