Prof Tom Lewis, Professor at NLS https://www.ntu.ac.uk/staff-profiles/law/thomas-lewis
Photo by Girl with red hat on Unsplash
On 27 September 2024 two Just Stop Oil activists, Phoebe Plummer and Anna Holland were sentenced, respectively, to prison terms of two years and 20 months for throwing two cans of Heinz tomato soup at Van Gogh’s 1888 masterpiece Sunflowers in Room 43 the National Gallery, London. They had earlier been convicted by a jury at Southwark Court of criminal damage for their protest which had taken place in October 2022. The painting was unharmed, protected as it was by a glass screen, but the soup caused £10,000 damage to the painting’s antique frame. Within hours of the sentence being handed down more Just Stop Oil protestors repeated the soup throwing, this time at two of Van Gogh’s Sunflowers paintings in Room 43.
Protest aimed at great works of art is certainly nothing new. In 1914 the suffragette Mary Richardson, in protest at the display of Diego Valázquez’s nude, The Rokeby Venus, in the National Gallery used a meat chopper to slash it. But recent years have seen a major upsurge in such artwork-based-activism from environmental protestors around the world. Examples of artworks targeted include – to name but a few – the statue, Laocoön and His Sons (The Vatican Museum); Sandro Boticelli’s Primavera (Uffizi, Florence); John Constable’s The Hay Wain (National Gallery); Claude Monet’s Haystacks (Barberini Museum, Potsdam); and Gustav Klimt’s Death and Life (Leopold Museum, Vienna).
Most of these acts have involved the throwing of foodstuffs or the pasting of alternative images into the canvases, and protestors gluing themselves to either frames, stands or adjacent walls. They have not hitherto, it seems, resulted in significant damage to artworks themselves.
These cases raise interesting ethical and legal issues and, unsurprisingly, lead to profound disagreement. Protestors, and those supporting them, stress the utmost gravity of the climate crisis – an existential threat to humanity – and the pressing need to raise public awareness. After throwing soup on Sunflowers and gluing herself to the wall Phoebe Plumber declaimed: ‘What is worth more, art or life? Are you more concerned about the protection of a painting or the protection of our planet and people?’ After the sentencing in the case a public letter signed by over a hundred artists, curators and art historians emphasised that that ‘Art can be, and frequently is, iconoclasm’ and that these ‘activists should not receive custodial sentences for an act that connects entirely to the artistic canon’.
Others, however, point to the grave risk of irreparable damage to priceless masterpieces. Thus, in November 2022, a statement by 92 museum directors, including those of the Louvre, the Guggenheim and the British Museum spoke out against such demonstrators, stating that they ‘severely underestimate the fragility of these irreplaceable objects, which must be preserved as part of our world cultural heritage’. Others argue that whilst their concerns are of crucial importance the protests would be better aimed at the petro-chemical corporations and governments, and the current trajectory presents a real risk of alienating public support, and losing its shock value.
This head-on collision of opposing ethical demands sets the stage for a clash of fundamental rights. Courts have to weigh the freedom of expression vested in protesters, against the interest that all other people have in viewing, and benefitting from, great artistic works. Freedom of expression can only be meaningfully preserved if it is protected for those receiving as well as transmitting thoughts, feelings and creations.
The complex nuance of the legal picture is illustrated by the fact that, just days after the sentencing of the defendants in the Sunflowers case, protestors who had glued themselves to the frame of JMW Turner’s painting Tomson’s Aeolian Harp in Manchester Art Gallery and sprayed the words ‘No New Oil’ in chalk on the gallery floor (causing less than £5,000 of damage) were acquitted at Manchester Magistrate’s Court with the District Judge saying that the action was a proportionate reaction to climate crisis.
Similarly, in the Netherlands, the Court of Appeals overturned an earlier jail sentence of protestors who had glued themselves to the glass screen of, and wall near, Vermeer’s The Girl with a Pearl Earring in the Mauritshuis Gallery, in The Hague. The Court stated that the activists – who had been held in pre-trial detention after their arrest, should not be sentenced to prison, saying that ‘the application of criminal law may not be so drastic as to have a “chilling effect” on people who want to exercise their right to freedom of expression and freedom of peaceful assembly in the context of a protest action’.
How then should the law deal with the conflict between protecting political expression on matters of profound public concern, and safeguarding timeless artistic creations as tangible manifestations of our collective cultural heritage? The European Court of Human Rights has stressed that democracy is wholly dependent upon the exercise of freedom of expression and peaceful protest. Consequentially, it has extended protection even to symbolic expression involving the defacing of public artworks. Thus, in Genov and Sarbinska v Bulgaria it was held that the fines imposed on political activists who spray-painted a monument to ‘partisans’ on the anniversary of the 1917 Bolshevik Revolution in the context of nation-wide anti-government protests violated the right to freedom of expression under article 10 of the European Convention on Human Rights.
However, these considerations do not amount to a carte-blanche. The Court has also stressed that imposing penalties on protestors may be legitimate where this is required to preserve the ‘rights of others’. For instance, in SInkova v Ukraine the state was found not to have violated the article 10 rights of a climate protestor who received a suspended sentence for frying eggs on the flame of the Tomb of the Unknown Soldier in Kyiv.
In contrast, where a custodial sentence is imposed for peaceful protest the European Court has been inclined to construe this as a disproportionate restriction, going beyond what is needed to protect the rights of others, and therefore an infringement of the right to freedom of expression. For example, in Murat Vural v Turkey the applicant was sentenced to a lengthy prison term for pouring paint on statues of the country’s founder, Kemal Atatürk. The Court held that there had been a violation of article 10, stating that ‘in principle … peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence’ [at para 66].
This stance of course raises the question: what defines the outer limits of peaceful protest? At what stage should be categorise an act of protest as violent, when it is directed at property, rather than a sentient being? Furthermore, do works of art recognised as having profound cultural significance to humanity transcend the realm of ordinary objects, and demand to be categorised differently. In other words, should attacking Michaelangelo’s David or a print by Hokusai be seen as ontologically different from targeting a diamond encrusted Mercedes?
This seemingly abstract philosophical question raises concrete problems in the application of domestic criminal law. For example, to what extent should art-work-activists charged under the Criminal Damage Act 1971 be able to seek the protection of the right to freedom of expression under the Human Rights Act 1998? Clues to the answer can perhaps be found in Attorney General’s Reference (No 1) of 2022, which concerned the so-called ‘Colston Four’, who had been acquitted by a jury of criminal damage for the toppling of the statue of the Bristol slave trader Edward Colston during Black Lives Matter Protests in June 2020.
The Court of Appeal addressed the question of whether the defence of freedom of expression would be available to protestors on a charge of criminal damage – essentially whether a separate, fact-sensitive, proportionality balancing exercise was required to be undertaken by the court in such a case. Reviewing the Strasbourg and domestic authority the Court ruled that such a separate balancing exercise was not appropriate, since the required calculation had already been undertaken by Parliament in passing the Criminal Damage Act in the first place. Accordingly, the Court of Appeal held that causing ‘significant damage to property’ during protest fell ‘outside the protection of the Convention’ either because the ‘conduct was violent or not peaceful’, or alternatively because the prosecution and conviction would clearly be proportionate’ [para 115].
At the same time, the Court of Appeal also said that where damage in a particular case was ‘minor or temporary’ – for example ‘scrawling a message on a pavement using water soluble paint’ – then, at least in the case of public property, the ‘Strasbourg caselaw suggests a need for case-specific assessment of the proportionality of the conviction. In other words, in such situations, judges must consider the protesters’ right to freedom of expression. [para 116].
This judgment perhaps explains the statement of Judge Hehir directed at the defendants in the Sunflowers case: ‘The action you took was extreme, disproportionate and criminally idiotic given the risks involved … There is nothing peaceful or nonviolent about throwing soup. Throwing soup in someone’s face is violent.’ The categorisation of defendants’ behaviour as “violent” meant that there was no room for a separate consideration of whether the protestors were exercising their right to freedom of expression.
Had the protestors simply glued themselves to the frame or adjacent wall, and their actions had therefore been categorised as non-violent, as in the Manchester Gallery case above, the free speech arguments could at least have been considered. This might well have led to a different outcome. Consequently, a very great deal seems to depend on whether a particular action is deemed to be a violent act or not. In Murat Vural the European Court implied that custodial sentences should not be imposed for non-violent protest, therefore whether the Sunflowers case is in line with this depends entirely on how “violence” is construed.
Is the current approach of the courts desirable, especially in light of the blurred boundaries around the definition of violence? The risk of damage to the priceless patrimony of humankind (for example the judge in Sunflowers mentioned the possibility of thrown soup seeping behind the painting’s glass cover and onto its canvas) seems a high price to pay when activists could (and indeed already do) target corporations, polluters, and governments. Yet on the other hand, it seems a harsh application of the criminal law to impose custodial sentences without even the possibility of advancing free speech arguments as a defence. Were it available, the defence would not always succeed, but taking it off the table entirely appears extreme. Furthermore, given the immediate follow-up protests involving further soup throwing, the hardline stance does not appear to have acted as a deterrence, and kept artwork out of harm’s way.
Further Reading
F Gantheret, N Guibert and S Stolk (eds) Art and Human Rights – A Multidisciplinary Approach to Contemporary Issues (Edward Elgar 2023)
R Martin ‘Convicting peaceful protestors: proportionality’s proper place at criminal trial’ (2024) 44(2) Oxford Journal of Legal Studies 342 - 375
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