Now that the annual round of degree shows is completed, one particular issue has been very prevalent this season and remains an unclear and often challenging area. Showing students’ artworks to the public can and sometimes does cause practical, legal and ethical problems for both tutors and students, if such works are potentially offensive, indecent, irreligious or obscene.

Final degree shows are the most frequently problematic, because they carry an element of public exhibition. Having assessed a student’s work as being worthy of a higher education award through its achievement of appropriate academic and artistic criteria, tutors may then have to decide not simply how, but whether, ‘difficult’ work should be shown to the public.

Most countries have enacted laws aimed at protecting the public from exposure to offensive, abusive, indecent, obscene or irreligious material. UK legislators have done so for centuries, ever since the common law courts responded to public complaints about behaviour that was judged to ‘outrage public decency’ (a successful prosecution for deliberately defecating in public). In modern times, such laws have been reformed in most liberal democracies to provide some form of ‘artistic defence’ for material, which, at face value, gives the public (mostly, nowadays, red top newspapers and gossip journals) cause to complain to the police.

But the problem for any potential defendant in such prosecutions – be they art school tutors, curators, broadcasters, film and TV producers, or publishers – is that the creative project or exposition or publication can be halted and the organisers prosecuted, before they have their chance to use their artistic defence at court. Dealing with such potential problems becomes a question of risk balance and management: what are the risks of the publicly exposed material causing complaint; if so, how are the police and prosecuting authorities likely to respond; how can such risks be minimised or obviated; and how do we deal with the almost inevitable complaints of the artist/author of the work?

The first and paramount consideration for dealing with those questions is how and why tutors would support the students’ artwork. In other words, what arguments would they deploy to mount a successful defence of the artwork on the grounds of artistic merit? It is entirely understandable that student work will often push and test accepted criteria and enter new territory. The academic and artistic criteria for awarding the final degree should suffice as the actual grounds for support of the work, and may also satisfy an artistic defence requirement if a criminal prosecution was brought.

If tutors decide that the artwork can and should be supported, for sound artistic reasons, they should then work with the student to discuss the potential problems of public exposition. They may wish to explore and agree curatorial strategies aimed at removing or containing potential public complaints. These might include devices such as warning notices at entrances to the gallery; use of appropriate and discrete showing places and spaces; a written statement by the artist and/or tutors placing the work in its artistic context, say, in the catalogue and/or posted by or near the work.

In their considerations and discussions, tutors and students would find it helpful to bear in mind particularly relevant pieces of UK legislation. The specific artistic defence to a charge of obscenity is, in effect, that the material – though, at face value, obscene – is justified as being for the public good by virtue of its being in the interests of ‘science, literature, art, or learning’; and expert witnesses can be called to give their opinion on such matters. Under the European Convention on Human Rights (which was fully adopted into UK law by the Human Rights Act 1998), Article 10 gives to citizens of all member states the legal right to ‘freedom of expression’ including the right to hold opinions, and to ‘receive and impart information and ideas’. This right is very much in line with the equivalent guarantee in written constitutions of democratic states, such as the US, where artists and curators have successfully used it to defend themselves against prosecutions for exhibiting allegedly obscene and pornographic artwork.

Probably the most helpful UK legislation, in relatively recent times, is the Indecent Displays (Control) Act 1981. Introduced into parliament as a measure to license sex shops, the act creates an offence of displaying indecent matter publicly; with a maximum penalty on conviction of two years’ imprisonment, but with no powers of arrest for the police who are only given powers of seizure over the allegedly offending material. Although the act does not define ‘indecency’ (each case is dealt with by the courts on its own merits), court decisions suggest that something ‘indecent’ is not necessarily ‘obscene’, but that something ‘obscene’ is also ‘indecent’. In other words, ‘indecent’ material is softer than ‘obscene’ material. ‘Public display’ includes anything inside a building visible from the outside, such as a (sex) shop, and even if access can be gained only by payment. No offence is committed if the establishment posts a warning notice denying admission to people under 18 years of age. And, significantly for this discussion, an offence is not committed where indecent material is displayed in an ‘art gallery or museum and (is) visible only from within the gallery or museum’ (and there are further exemptions from prosecution for public plays, film showings, and TV broadcasts). It would be difficult to sustain a rational legal argument that a public exhibition of student artwork by an art school, even on a temporary basis, was not an ‘art gallery’ for the purposes of this legislation.

However, if tutors and student cannot agree on a suitable curatorial approach which protects the interests of both parties, the student should accept the institution’s right not to show the work – for, in the final analysis, the art school hosts and invites the public to view the work it decides to show. Another important consideration for tutors is their accountability to their bosses, the governors of their institution who, in turn are ultimately responsible for operating within the law.

It would be helpful, therefore, to all concerned, if art schools throughout the UK could develop a code of ethics or practice for showing student artwork to the public; an issue which could perhaps be addressed by an organisation such as the Council for Higher Education in Arts and Design. Resulting guidelines could be of great assistance to governors, tutors, and students in fulfilling their joint and separate responsibilities to each other, to the viewing public, and to the law of the land. The UK’s Museums (and Galleries) Association publishes a ‘Code of Ethics and Ethical Debates’ and a guide on ‘Museum Practice’: Though these documents do not appear to address the specific censorship and freedom of expression issues discussed here, they do offer helpful starting points for researching and developing an appropriate code for public art school shows.

In this way it may be possible to achieve a more secure climate for the exposition of work which by its very nature will often seek to challenge and change the status quo, which most would agree forms a very important and necessary part of the process of education.

© Henry Lydiate 2007

This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.