Webber Wentzel successfully acted for the Goodman Gallery (the Gallery) in its appeal against the "16N" classification of Brett Murray's artwork "The Spear" by the Films and Publications Board (FPB).
Dario Milo, media lawyer at Webber Wentzel, says: "The resounding importance of the FPB Appeal Tribunal's ruling is in its underlying theme, which is that restrictions on freedom of expression will only pass muster if there is proof of a likelihood of harm to an equally important countervailing interest —such as harm to children, in this case."
The FPB Appeal Tribunal, chaired by University of KwaZulu Natal Professor Karthy Govender, handed down a ruling on 10 October 2012 upholding the appeal. The rating decision was made by the FPB classification committee on 5 June 2012, and was but one chapter of a tumultuous history in the short existence of "The Spear".
Not only were the artwork and the Gallery subjected to acts of defacement and vandalism, but they were also the cause of an urgent interdict application brought by the ANC and Jacob Zuma, President of South Africa. The application, brought on grounds of alleged defamation and infringement of dignity, was settled out of court. Both parties acknowledged the importance of the constitutional rights of freedom of expression and dignity.
In the ruling, the FPB Appeal Tribunal accepted the Gallery's argument that the content depicted in the artwork cannot be described as "sexual conduct" under the Films and Publications Act; and noted that one cannot assume that the display of nudity is presumptively harmful to children. The latter argument would imply that any artwork containing displays of nudity, for example Pablo Picasso's "Nude Youth" painting and Michelangelo's sculpture "David", would be deemed presumptively harmful for children.
The Appeal Tribunal found that:
"any contention that the painting would be harmful to children on the grounds that it seriously undermines and is insensitive to African culture would have to be supported by evidence. There was no such evidence before the… committee. The evidence before it was that there was a work of artistic merit that dealt provocatively with political issues and questions by drawing on the relationship between sex and power."
The Appeal Tribunal set aside the classification of "The Spear":
・ as it was displayed in the Gallery in its pre-defaced form;
・ as it was displayed on the Gallery's website;
・ as it appeared online in websites other than that of the Gallery; and
・ as it appeared in any other format.
For more information, contact Webber Wentzel attorneys Dario Milo (011 530 5232) or Greg Palmer (011 530 5030).