Freedom of artistic expression under Article 10 of the European Convention on Human Rights

Abstract

Under the auspices of Article 10 of the European Convention on Human Rights the right to freedom of expression is said to be held by everyone and to include the freedom to hold opinions and to receive and impart information and ideas without interference by public authority, subject to the limitation clauses outlined in Article 10(2). Whilst the text of Article 10 therefore makes no explicit reference to specifically artistic expression, the European Court of Human Rights has, in its interpretation of ‘information and ideas’, nevertheless accepted that artistic expression does indeed fall within the ambit of Article 10’s protection of freedom of expression. However, despite the Court recognising artistic expression as a form of expression within the framework of Article 10, conclusions reached in the early case law concerning the issue of controversial artworks would appear to suggest the judicial creation of an implicit hierarchy of expression under which artistic expression is seen to enjoy a relatively low level of protection. Given the non-differentiated articulation of the right to freedom of expression enounced in the text of Article 10, the creation of such a hierarchy of expression is therefore a cause for doctrinal concern. In seeking to assess this misnomer the thesis’ analysis of the treatment of artistic expression under Article 10 of the European Convention on Human Rights may be distilled in to two component parts. Firstly, a theoretical basis will be established from which artistic expression may be located within the context of the discourse pertaining to freedom of expression more generally. Having confirmed that, whilst of a distinctive, sui generis nature, artistic expression may indeed constitute ‘expression’ for the purposes of freedom of expression doctrine the second part of the thesis will examine the particular question of artistic expression’s treatment under Article 10 of the European Convention on Human Rights.