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 to create art differs depending on national instruments established to protect, promote, control or censor artists and their creative expressions. Universal, regional and national legal provisions exist 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'." is an integral report published by arts censorship monitor on an annual basis.

Definition of artistic freedom

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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." 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." This is why "artists are sometimes responsible for radical criticism." 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 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." 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.</blockquote>

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."

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." When 2017, Indonesia published Cultural Advancement Law based on principles 11 values, including guaranteeing freedom of expression, ensuring the protection of cultural expression, providing cultural facilities and infrastructure, also funding sources for cultural advancement.

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.

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

In the U.S., the first amendment protects artistic expression.</blockquote>

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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. 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."

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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. 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. 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".

There is also monitoring carried out by Koalisi Seni, an institution that advocates for arts policy in Indonesia. From the results of its monitoring, Koalisi Seni notes, in Indonesia during the pandemic, social restrictions to reduce the spread of COVID-19 became a new excuse for the state to suppress arts activities. There are also notes that stigmatization of art often occurs because art is considered to damage people's morals and invite immorality.

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.