The arts sector of society is synonymous with strongly held, diverse opinions. When do controversial opinions, commentary and criticism cross the line and become defamatory? It’s a question that was examined in a 2023 defamation case involving several prominent figures in the art world. The case examined the importance the law attaches to protecting the principle of freedom of expression, even against the backdrop of fairly extreme and offensive commentary. So at what point does a publication cross the line from being lawful to being liable for defamation? At Nath Solicitors in London, we advise individuals on all aspects of defamation law and practice, and can usually give you a useful overview of your legal position following an initial consultation. For more information contact our director Shubha Nath on 0203 983 8278.
Miller and Turner (2023) – The Background
The case involved three parties well-known on the arts scene. The first claimant was a poet and performance artist, the second an art critic and the defendant was best known for collaborative works in performance art. He had attracted considerable amounts of abuse from the public, some of which was antisemitic in nature.
This case followed various exhibitions and art events, and a high-profile work by the defendant. These events all ignited heated debate and led to highly charged demonstrations outside art galleries and damage to artworks, claims and counterclaims of censorship and no-platforming, and personal abuse, intimidation and violence.
Following a difference of opinion between the parties, the defendant posted sixteen tweets and published a webpage about the claimants which included an archive of the tweets. To give some flavour of the contested material, the webpage contained the following introduction:
The material available via this webpage is about the (First Claimant). It shows he is racist, antisemitic, homophobic, transphobic, ableist and misogynistic. He has issued violent threats and caused harassment.
As a result of the publications, the claimants pursued a claim in defamation against the defendant. The defendant sought a counterclaim of harassment.
The Decision
The court held that the claim for defamation by the claimants should be dismissed. It also decided that the defendant’s claim for harassment by the claimants had not been established.
Key to the failure of the defamation claim was that in the judge’s opinion, the claimants had failed to demonstrate that the defendant had caused them sufficiently serious harm. As we have seen, showing serious harm is key to a successful defamation claim. The dismissal of the defendant’s harassment claim turned on the judge’s belief that, while the conduct of the claimants may have amounted to bullying and was aggressive it did not meet the high bar that constitutes harassment.
Comment
This case was all about freedom of expression – and its limits. Freedom of expression – the freedom to hold opinions and to receive and impart information and ideas without interference by the state – is recognised in this country as a fundamental human right and protected as such by law. As the judge pointed out the right almost matters more when the opinions in question may be strongly contested or outside the mainstream
In our view, the case depicts how it remains vital that individuals retain their fundamental right to freedom of expression, and in the context of debating conflicting ideas about art this really matters. The law will hesitate before attempting to regulate freedom of expression during such debates. A debate does not need to be fair, respectful or kind for individuals to maintain their right to freely express their opinions on a matter, so long as their actions do not cause serious harm to another.
Contact Us
At Nath Solicitors, we specialise in defamation law. If you need advice contact us on 0203 983 8278 or get in touch with us online.
