By Keith, Alex, Eliana and Nina
Artistic Expression
Satire
Politics
Freedom of Expression
Dignity
 Case originates from the exhibition called 'The Century Of
Artistic Freedom' presented by Vereinigung Bildender
Kunstler Weiner Secession (an association of artists)
 One painting – “Apocalypse” by Otto Mühl - was a collage
of 34 public figures presented naked and involved in sexual
activities.
 One of the people depicted on the painting was
Mr.Meischberger, a former general secretary of Austrian
Freedom Party.
 Painting raised a lot of criticism and became a big scandal.
It was vandalised by one of the visitors who painted Mr.
Meischberger’s figure out with red paint.
Mr. Meischberger brought proceedings under
s. 78 of Austrian Copyright Act
He sought injunction so that the painting is
not any more exhibited by Association
He also requested compensation
for the reason that the painting was
humiliating to him as a person and as a
politician
 Vienna Commercial Court dismissed the claim
 Vienna Court of Appeal assessed that the painting was a
debasement of Mr. Meischberger, pointing out that he was
a public figure. It issued an injunction claimed by the
politician as well as ordered compensation (1,450 Euro)
 Supreme Court: the judgement of Vienna Court of Appeal
was confirmed. Court stressed out that :
 Rights under Art 78 of Copy Right Act outbalanced the
artist rights under Art 17a Basic Law
 It is because the nature of the painting was disgraceful and
offending towards Mr. Meischberger.
 VBK Association
 Alleged violation of Art. 10: The Austrian Court’s decision forbidding any
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further exhibition of the painting has violated it’s right of freedom of
expression.
The exhibition of the painting contributed to a debate between the artist,
the exhibitor an the public and was therefore protected by Art. 10.
The interference was prescribed by law, but had been neither necessary
nor proportionate.
The painting did not state or suggest that the way in which he was
portrayed corresponded to his actual behavior .
Mr. Meischeberger were not recognizable after the painting had been
partly damaged.
The decision concerned not only the ABK Association but the painter and
any other 3rd party wishing to exhibit the painting.
 Austrian Government
 The decision did not constitute an interference with the VBK
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Association’s rights within Article 10.
Article 10 did not protect artistic freedom of expression as such
but only provided protection to artist who intended to
contribute through their work to a public discussion of political
or cultural matters
The painting could be hardly regarded as a statement of opinion
The interference was lawful and pursued the legitimate aim of
protecting morals and the reputation and rights of others.
It was proportionate
 Human Rights Concerned:
 Freedom of expression as an essential foundations of a
democratic society
 Art. 10, Par. 2: it is also applicable to “information” or “ideas”
that offend, shock or disturb the State or any section of the
population.
 Freedom of artistic expression: “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”
 FOAX can be limited if is not in accordance with “duties and
responsibilities” (Art. 10, Par. 2)
Considering the Austrian Court’s injunction an
interference with the VBK Association right of
freedom of artistic expression, does this
interference constitute a violation of the
Article 10 of the Convention?
Interference
 Prescribed by law (Section 78 of Copyright Act)
 Legitimate aim pursued: “Protection of the rights
of others”, specifically Mr. Meischberger’s
individual rights.
 It does not pursued the aim of protecting public
morals.
 Necessity (in a democratic society):
 The painting did not aim to reflect or even to suggest
reality
 Caricature and satire
 Counter-attack
against the Austrian Freedom Party.
 Mr.... Meischeberg was one of the less well known of
the people appearing – Hardly remembered by the
public.
 The part of the painting showing him had been
damaged.
 Austrian Court’s injunction was not limited either in
time or in space.
“Having balanced Mr. Meischberger’s personal
interests and taking into account of the artistic and
satirical nature or his portrayal, as well as the impact
of the measure on the applicant association, the
Court finds that the Austrian court’s injunction was
disproportionate to the aim pursued and therefore
not necessary in a democratic society within the
meaning of Article 10”
Damage:
 Pecuniary damage: 12,286.74 €
 Non-pecuniary damage: Satisfied by finding a
violation of Article 10.
 Costs and expenses: 15,950.74 €
Case was decided 4-3
Dissenting opinions:
 Judge Loucaides
 Judges Spielman and Jebens
 In relation to the ‘artistic and satirical’ nature of the
painting:
 ‘The nature, meaning and effect of any image or images in
a painting cannot be judged on the basis of what the
painter purported to convey. What counts is the effect of
the visible image on the observer. Furthermore, the fact
that an image has been produced by an artist does not
always make the end result ‘artistic’. Likewise, an image
will not become ‘satirical’ if the observer does not
comprehend or detect any message in the form of a
meaningful attack or criticism relating to a particular
problem or a person’s conduct’
Who defines ‘art’ and ‘satire’?
 Artist?
 Public opinion?
 Judiciary?
 The majority of his judgement focuses on the
painting and the images depicted. He concludes:
 ‘Personally, I was unable to find any criticism or satire in
this ‘painting’. Why were Mother Teresa and Cardinal
Hermann Groer ridiculed? Why were the personalities
depicted naked with erect and ejaculating penises? To
find that situation comparable with satire or artistic
expression is beyond my comprehension’
 Furthermore:
 ‘Nobody can rely on the fact that he is an artist or that a
work is a painting in order to escape liability for insulting
others. Like the domestic courts, I find that the ‘painting’
in question undermined the reputation and dignity of Mr
Meischberger in a manner for which there can be no
legitimate justification and therefore the national
authorities were entitled to consider that the impugned
measure was necessary in a democratic society for the
protection of the reputation or rights of others’
The judges did consider that this form of
artistic expression could be seen as containing
some aspect of satire.
However:
 ‘We do not agree with this conclusion. Our
reason is that where the ‘protection of the rights
of others’ is at stake, artistic freedom cannot be
unlimited’
 They recognise that Article 10 protection extends to
ideas that ‘offend, shock or disturb’
 Interestingly, they state:
 ‘We also take the view that the State’s margin of
appreciation should be particularly limited, or indeed
practically non-existent, where its interference affects
artistic freedom’
 Does this opinion reflect the jurisprudence of the
court?
Ultimately, the excessive nature of the
portrayal in the painting was deciding factor
in this dissenting opinion.
The judges held:
 ‘The excessive nature of the portrayal results
precisely from its attack on the ‘dignity of others’,
which in our view is covered by the protection of
the ‘rights of others’.’
 ‘In our opinion, it was not the abstract or
indeterminate concept of human dignity – a concept
which can in itself be dangerous since it may be used
as justification for hastily placing unacceptable
limitations on fundamental rights – but the concrete
concept of ‘fundamental personal dignity of others’
which was central to the debate in the present case,
seeing that a photograph of Mr Meischberger was
used in a pictorial montage which he felt to be
profoundly humiliating and degrading.’
Raised some minor points at the end of their
judgement:
 Felt that the unauthorised use of Mr
Meischberger’s photograph could constitute a
breach of Article 8, the right to private life.
 Josef Müller plus the 9 other applicants in the
case, held an exhibition in contemporary art
 Muller produced a painting entitled 'Drei
Nächte, drei Bilder”
 The paintings had graphic and sexual content
involving sexual relations between men and
animals
 It was reported to the investigating judge that
the paintings in question appeared to come
within the provisions of Article 204 of the
Criminal Code, which prohibited obscene
publications and required that they be
destroyed
 The pictures in question were subsequently
removed and seized, the artists were also fined
for publishing obscene material
 At the ECtHR:
 The question for the court was whether the restrictions on
freedom of artistic expression were justified as being
prescribed by law and necessary in a democratic society in
the interests of the protection of morals.
 The Court inspected the original paintings and did not seek to
challenge the finding of the Swiss courts
 As to whether the State was justified in confiscating the
paintings, the Commission found for the appellants by 11:3,
although it was unanimously of the view that their conviction
was justified
 What Muller illustrates is the “hands off” approach by the
ECtHR to the regulation of artistic expression
 Despite some differences, namely that Müller concerned
obscenity and the protection of public morals
 While in contrast, in VBK v Austria the challenge to the work
was not brought by the state on moral grounds under
obscenity laws, but was a private action under the Copyright
Act to protect the “personal interests” of one of the persons
depicted.
 In comparison to the judgement in Müller, the judgement in
VBK v Austria appears to be a significant step forward in
protecting the freedom of artistic expression
 Richard Norman Gibson was an artist. He
created a work entitled ‘Human Earrings’,
which incorporated freeze-dried human
foetus’ of three or four months’ gestation.
 Gibson and the Sylverie (the gallery owner)
were charged with and convicted of the
common law offence of “outraging public
decency.”
 For the first time in UK law the offence of
outraging public decency was stretched to
cover artistic expression
 It was held that there was no defence
available that the work was in the “public
good”
 After their conviction Gibson and Sylverie applied to
Strasbourg, claiming a breach of their right to
freedom of expression.
 The Commission found that the restriction on
expression was sufficiently ‘prescribed by law’
 That it pursued a ‘legitimate aim’ (the protection of
morality)
 And that it was ‘necessary in a democratic society’.
 On this last point the Commission noted the wide
margin of appreciation afforded to states where the
protection of morals is concerned.
This case shows the strict approach taken in
UK law to artistic expression that shocks or
offends.
It also yet again illustrates the wide margin of
appreciation given to domestic law.
Australian Position on Freedom of
Artistic Expression
Australian Constitution
 No Bill of Rights or express protection
 Implied freedom of political communication –
narrow interpretation
Common Law
 ’Residual liberty’
 Eg, defamation law, contempt, intellectual
property and breach of confidence
Australian Defamation Law
This current case would fit under the
Defamation Act 2005
Defamatory?
 Likely to cause ordinary, reasonable persons to
think less of the plaintiff or to shun or avoid the
plaintiff
Defences?
 Justification, qualified privilege or honest opinion
 None really applicable here
 The protection of artistic expression which deals with sexual or religious
issues that shock has received notably low levels of protection at a
European level.
 The decision in VBK v Austria does little to resolve the recent dilemmas
about whether free speech includes the right to cause shock and offence.
 In that sense the case hardly promotes the principles of pluralism,
broadmindedness and tolerance that have been identified previously, for
example in the Handyside case, where the ECtHR accepted that freedom
of speech applies to views which shock and offend and which are
disapproved of by the recipient as essential to democracy.
 In addition, the continued use of the margin of appreciation by the
Strasbourg institutions themselves in this area has been subjected to
severe criticism, both fundamentally, in that it introduces an unacceptable
degree of cultural relativism into the protection of what are supposed to
be universal rights, and also for lack of consistency and predictability in
application.
Personal Comments
"My work is psychic subversion, aiming at the
destruction of the pseudo-morality and ethic of state
and order. I am for lewdness, for the
demythologization of sexuality. I create to provoke
scandals, for audiences that are hidebound, perverted
by "normalcy", mentally stagnating and conformist ...
The worldwide stupefaction of the masses at the hands
of artistic, religious, political swine can be stopped only
by the most brutal utilization of all available
weapons. All kinds of revolt are welcome: only in this
manner will this insane society, product of the fantasies
of primeval madmen, finally collapse ... I restrict myself
to flinging the food to the beasts: let them choke on
it".