Artistic expression: freedom or curse?

Abstract

The purpose of this contribution is to evaluate the jurisprudence of the European Court of Human Rights (ECtHR) in freedom of artistic expression cases dealing with visual and performance arts. The reasons for this particular evaluation are salient to the fact that the ECtHR has consistently provided a lesser level of protection to artistic expression than to political expression. The aim of this article is to challenge the approach of the Court to the freedom of artistic expression in relation to visual and performance arts. The critical evaluation is based on two different but complementary grounds: contemporary theory of art critique of the ECtHR’s understanding of art and critique based on the ECtHR’s own political freedom of expression cases. The argument of the authors is that the ECtHR approach to visual and performance arts as an exercise in ethics and aesthetics is contradicted by contemporary art theory and practice which invariably assumes the societal role of art, its potential subversive and transformative function within a society at large, and, ultimately, its lato sensu political value. In addition, visual and performance arts are powerful yet fragile instruments for delivering the debate to society at large. Viewed from this perspective, artistic expression has the same beneficial effect on a democratic society as political expression stricto sensu. Therefore, the rationales underpinning protection of political expression are essentially the same as those of artistic expression, therefore the ECtHR should extend the same level of legal protection to arts and artists to keep valuable social dialogue alive.