Freedom of speech in the creative industries: how did it all go so wrong?

Freedom of speech in the creative industries

While cancel culture and culture wars are attacks on freedom of speech and freedom of press coming from the bottom, the virulence of the latest onslaught on freedom of the press and creative expression now comes from the top. States, government structures, public and private companies, oligarchs as well as other plutocrats are using all the legal tools in the box, and more, to silence, intimidate and neuter anyone who may as much as mouth a criticism about them, their behaviours, their actions and their track records. The creative industries are particularly targeted by these authoritarian top-down approaches and legal tactics to bland their creative outputs and works, despite the legal protections offered by copyright.

1. A global context of seriously curbed free expression and free press

In the aftermath of the COVID-19 pandemic, and in the midst of the thralls caused by the inflation crisis and recession, the population around the world, but the creative industries in particular, have seen many of their liberties curtailed, if not obliterated, in the last five years.

In particular, the freedom of speech and the freedom of the press have all been extremely impacted, by the bullying, scaring and repressive tactics implemented by old – and dying – plutocratic, corrupted and totalitarian powers, economic entities, structures, regimes and governments.

Indeed, the Index Index, a new pilot project and global index that uses innovative machine learning techniques to map the free expression landscape across the globe to gain a clearer country-by-country view of the state of free expression across academic, digital and media/press freedoms, has placed:

  • France in the second tier of its new global index of freedom of expression (2: ‟significantly open”);
  • the United States of America (‟USA”) in the third tier too, of its new global index of freedom of expression,

with most countries in the world being in the 4: ‟partially narrowed” to 10: ‟closed” categories.

China, Burma, Laos, Turkmenistan, South Sudan, Syria, Belarus, Cuba and Nicaragua are all ranked in this worst category 10.

These very concerning rankings were confirmed by other indexes, such as:

  • the Economist’s Democracy Index 2022 (which ranked France and the UK as – just about – ‟full democracies” at ranks 22 and 18, respectively, and placed the USA as a ‟flawed democracy” at rank 30).

2. How legal systems and tactics are used to silence the creative industries, via attacks on the freedoms of expression and the press

2.1. Very wide – and widening – exceptions to freedom of speech in the French and UK statutory legal frameworks

As explained in our 2020 article on cancel culture, while freedom of speech is enshrined in the French declaration of rights of the human being and citizen, dated 1789, in its article 11 (‟free communication of thoughts and opinions is one of the most precious rights of the human being: any Citizen may therefore speak, write, print freely, except where he or she has to answer for the abuse of such freedom in specific cases provided by law”), many specific cases where freedom of speech is curtailed, are also enshrined, under French law.

These statutory limits and exceptions to freedom of expression include:

  • Law dated 1881 on the freedom of the press which, while recognising freedom of speech in all publication formats, provides for four criminally-reprehensible exceptions, which are insults, defamation and slander, incentivising the perpetration of criminal offences, if it is followed by acts, as well as gross indecency;
  • Law dated 1972 against opinions provoking racial hatred, which – like the four above-mentioned exceptions, is a criminal offence provided for in the French criminal code;
  • Law dated 1990 against revisionist opinions, which is also a criminal offence in order to penalise those who contest the materiality and factuality of the atrocities committed by the Nazis on minorities, such as Jews, homosexuals and gypsies before and during world war two, and
  • Law dated July 2019 against hateful content on internet, which provisions (requiring to remove all terrorist, pedopornographic, hateful and pornographic content from any website within 24 hours) were almost completely censored by the French constitutional council as a disproportionate infringement to freedom of speech, before entering into force in its expurgated finalised version later on in 2019.

Since 2020, many more laws have been promulgated, in France, in order to kill freedom of speech and freedom of the press, by legitimating the use of artificial intelligence algorithms to collect, gather and process algorithmically personal data and content, to police speech and the media. This ‟total information awareness” (‟TIA”) empowers governments, tech companies and private surveillance companies into implementing surveillance capitalism, enshrined in new laws, such as, for example, the law relating to global security adopted in France on 25 May 2021. Because of this new law, it has now become a crime punishable by five years of prison and a Euros 300,000′ fine, to broadcast, by any means, the face or any other identification element of a member of the French police forces acting within the scope of a police operation. This new law is extremely detrimental to people who live in/go to France, since taking smartphone pictures and videos of French assaulting police officers (an occurrence which is extremely common, in France), while these assaults are occurring, was the only way to gather evidence of French police violences and acts of harassment. Indeed, nobody in their right mind wants to testify in court and/or at a police station that they witnessed someone beaten up by French police forces, in the middle of the street and/or in the privacy of their own homes, for fear of personal security jeopardy and ongoing acts of vendetta and reprimand by French policemen and their top brass.

On the other side of the Channel, the legal framework around freedom of speech is no panacea either. Freedom of expression is usually ruled through common law, in the UK. However, in 1998, the UK transposed the provisions of the European Convention on human rights – which article 10 provides for the guarantee of freedom of expression – into domestic law, by way of its Human rights act 1998.

Not only is freedom of expression tightly delineated in article 12 (Freedom of expression) of the Human rights act 1998, but there is a broad sweep of exceptions to it, under UK common and statutory law. In particular, the following common law and statutory offences, narrowly limit freedom of speech in the UK:

  • threatening, abusive or insulting words or behaviour intending or likely to cause harassment, alarm or distress, or cause a breach of the peace (which has been used to prohibit racist speech targeted at individuals);
  • sending any letter or article which is indecent or grossly offensive with an intent to cause distress or anxiety (which has been used to prohibit speech of a racist or anti-religious nature, as well as some posts on social networks), governed by the Malicious communications act 1988 and the Communications act 2003;
  • incitement (i.e. the encouragement to another person to commit a crime);
  • incitement to racial hatred;
  • incitement to religious hatred;
  • incitement to terrorism, including encouragement of terrorism and dissemination of terrorist publications;
  • glorifying terrorism;
  • collection or possession of a document or record containing information likely to be of use to a terrorist;
  • treason including advocating for the abolition of the monarchy or compassing or imagining the death of the monarch;
  • obscenity;
  • indecency including corruption of public morals and outraging public decency;
  • defamation and loss of reputation, which legal framework is set out in the Defamation act 2013;
  • restrictions on court reporting including names of victims and evidence and prejudicing or interfering with court proceedings;
  • prohibition of post-trial interviews with jurors, and
  • harassment.

Lately, the UK government has also introduced in parliament the ‟Online safety bill” which proposes to hand to the UK’s communication regulator, Ofcom, the power to identify ‟lawful but harmful” (sic) content and punish social networks that fail to remove it. While these proposals to regulate social media are deemed to be a ‟recipe for censorship” by campaigners, the Bill passage is following its course in parliament, and is currently at the ‟Committee stage” in the House of Lords, with a view of obtaining royal assent this year, in 2023.

2.2. The use of rap lyrics as legal confessions and evidence in court to ‟put away” and silence artists

Always imaginative and tactically astute, criminal prosecutors and criminal attorneys around the world are using the lyrics and other creative output of artists and musicians as evidence in criminal cases, to put them in jail and stop them from expressing any of their ideas and views.

Rappers in particular, whose lyrics are usually punchy, on point political commentaries and frank assessments of where respect of civil liberties is at in any society (remember ‟Fuck da police” from NWA released in 1988?), are viciously targeted by these legal proceedings’ tactics.

For example, in the USA, this distorted and twisted use of rap lyrics as legal confessions in court is so widespread that:

  • another similar bill is under consideration in the state of New Jersey, and
  • the ‟Restoring Artistic Protection Act” (‟RAP”) was introduced in the US congress in 2022, in order to achieve something similar on a US-wide basis.

In Europe, rappers are also being systematically neutered by using criminal proceedings against them.

In the UK, Music Week reported that the UK rap star Digga D, who achieved a N. 1 album in April 2022, faced legal challenges to his career including a Criminal Behaviour Order, following criminal convictions and spells in prison. In recent years, UK drill music, a growing sub-genre of UK rap, has increasingly used in the courtroom as evidence of bad character, with the prosecution engaging police officers – who are notably not drill ‟experts” to decode slang-heavy lyrics for the court. In some cases, the videos presented as evidence of gang involvement and violent disposition pre-date the alleged offence by several years.

France and its police forces, who have always had a difficult relationship with the rap genre and their authors, i.e. minorities from ethnic backgrounds (check ‟La Haine” to get a feel), have, also, clamped down on rap lyrics which may in any way challenge the French establishment and status quo.

In particular, in relation to Franco-Italo-Senegalese rapper, Freeze Corleone, who was not only criminally indicted by the very controversial French minister of the interior, Gerald Darmanin – who was himself under criminal investigation for sexual coercion, harassment and misconduct in 2009, and then again between 2014 and 2017 – for provoking racial hatred and racial slander, upon the release of his first album ‟La Menace Fantôme” (‟LMF”), but whose songs were (unsuccessfully) requested to be pulled off from all streaming platforms such as YouTube, Spotify, Deezer, by the French government. As a result, Freeze Corleone – who, surprisingly, is still not in prison, probably because he resides in Senegal, rather than France – was dropped by his original label, Universal, and, more recently, by BMG, which forced him to self-release his third album ‟Riyad Sadio”.

27-year-old stalwart French rapper, Moha La Squale, is currently rotting in prison, for breaching his ‟judicial control” (‟contrôle judiciaire”, i.e. the right to stay outside jail, pending the occurrence of a criminal court case) in June 2022. While Mohamed Bellahmed is certainly no angel, as he was indicted for alleged violences and sexual assault on several of his ex-girlfriends, it is quite obvious that the French government and judiciary are mostly concerned about his rap lyrics and videos, which one can only describe as eulogies to recreational drug use (‟Amsterdam”) and drug dealing (‟Ca débite”).

2.3. SLAPP lawsuits to censor, intimidate and silence investigative journalists and authors

Another institutionalised legal tactic to kill freedom of speech and freedom of the press are Strategic Lawsuits Against Public Participation (‟SLAPP”), especially popular – and effective – in the UK.

Very prized by Russian oligarchs and other plutocrats, SLAPPs have – and still are – routinely lodged by mercenary law firms, such as Osborne Clarke, Mishcon de Reya, Schillings, Harbottle & Lewis, CMS, Carter Ruck and Boies Schiller Flexner, to censor, intimidate and silence critics by burdening them with the cost of a legal defence, until they abandon their criticism or opposition.

In a typical SLAPP, the claimant does not normally expect to win the lawsuit. Their goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs, or simple exhaustion and abandons the criticism. In some cases, repeated frivolous litigation against a defendant (usually an investigative journalist) may raise the cost of directors’ and officers’ liability insurance for that party, interfering with an organisation (i.e. the publisher or journal)’s ability to operate. A SLAPP may also intimidate others from participating in the debate.

A common feature of SLAPPs is forum shopping, wherein claimants find courts that are more favourable towards the claims to be brought than the court in which the defendant (or sometimes claimants) live.

The UK is just such a jurisdiction.

For example, a 2021 libel action brought against Big 5 publisher, HarperCollins, and the author and journalist Catherine Belton, over the latter’s book, ‟Putin’s people”, was a SLAPP. Despite good prospects of winning the legal case brought by several Russian oligarchs, including Roman Abramovich, Ms Belton was left facing legal costs of GBP1.5 million. She settled the claims against her. Her publisher agreed to make edits to the book and a charitable donation, after agreeing that some of the information about one of the oligarchs was, allegedly, ‟incorrect” (sic).

The rise of SLAPPs got so bad and stifling on civil liberties, in the UK, that the Solicitors Regulation Authority (‟SRA”) launched a crackdown on SLAPPs, saying it believed that some British lawyers were pursuing ‟abusive litigation” designed to ‟harass or intimidate” their opponents into silence. It set out a list of behaviour that could result in disciplinary measures. The SRA said it would take action if it found lawyers sending threatening letters advancing meritless claims or pursuing litigation that was ‟bound to fail”. The SRA has 29 probes underway based on complaints and tip-offs, and warned lawyers that ‟representing your client’s interests does not override wider public interest obligations and duties to the courts”. A model anti-SLAPP law was drafted by the UK anti-SLAPP Coalition but not much has come of it, yet.

Of course, as one would expect, the USA has had a flurry of cases which are notable SLAPPs.

Even French courts are routinely seeing SLAPPs in their dockets. For example, in 2010 and 2011, Mathias Poujol-Rost, a French blogger, was summoned twice by the communication company Cometik (NOVA-SEO) over exposing their quick-selling method and suggesting a financial compensation for his first trial. The company’s case was dismissed twice, but appealed both times. On 31 March 2011, the company won in court:

  • the censorship of any reference (of its name) on Mathias Poujol-Rost’s online blog;
  • Euros 2,000 in damages;
  • the obligation to publish the judicial decision for 3 months on Mr Poujol-Rost’s blog;
  • Euros 2,000 as procedural allowance, and
  • all legal fees for both first and appeal instances.

SLAPPs are becoming so concerning that the European Commission has drafted a proposed directive to tackle abusive lawsuits against journalists and human rights defenders. It enables judges to swiftly dismiss manifestly unfounded lawsuits against journalists and human rights defenders, as well as establishing several procedural safeguards and remedies, such as compensation for damages and dissuasive penalties for launching abusive lawsuits.

The short-term outlook is really troubling, as far as protecting freedom of speech and creative expression are concerned. Only decisive technological, legal, enforcement and political action from the people, and their future representatives, may reverse the course of these extremely worrying trends of annihilating freedoms of expression and of the press, coming from both the top, and the bottom. Let’s watch the space and see. I suspect, though, that the next few years will see violent riots, guerrillas and civil wars erupt, as the people grabs back power, and reclaims agency – as well as its civil liberties -, the hard way because obsolete structures, corrupt governments, the patriarchy and rotten individuals and companies refuse to relinquish their autocratic power and plutocratic control.

Crefovi’s live webinar: Freedom of speech in the creative industries – 15 February 2023

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