The President, his penis and the Streisand Effect

Background

If you have missed the controversy that arose in the last few days about a depiction of President Zuma with his penis exposed called “The Spear”, this is what it is all about:

The painting is part of an exhibition by Brett Murray called “Hail to the Thief II”, a sequel to his 2010 series “Hail to the Thief”. It is currently on display at the Goodman Gallery which describes the exhibition as follows:

Established Cape Town based artist Brett Murray returns to Goodman Gallery Johannesburg with Hail to the Thief II. This body of satirical work continues his acerbic attacks on abuses of power, corruption and political dumbness seen in his 2010 Cape Town show Hail to the Thief. In this sequel show, Murray’s bronzes, etchings, paintings and silk-screens form part of a vitriolic and succinct censure of bad governance and are his attempts to humorously expose the paucity of morals and greed within the ruling elite.

The ANC and Presidency Responds

The ANC was outraged by the depiction of the President and other works in the exhibition criticising the ANC for, among other things, its apparent corruption and emphasis on material wealth. The ANC released a statement on 17 May which reads as follows:

ANC outraged by Brett Murray`s depiction of President Jacob Zuma

17 May 2012

The African National Congress is extremely disturbed and outraged by the distasteful and indecent manner in which Brett Murray and the Goodman Gallery in Johannesburg is displaying the person of Comrade President Jacob Zuma.

This disgusting and unfortunate display of the President was brought to our attention by one of the media houses and we have physically confirmed this insulting depiction of the President. We have this morning instructed our lawyers to approach our courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and destroy all printed promotional material. We have also detected that this distasteful and vulgar portrait of the President has been displayed on a weekend newspaper and its website, we again have instructed our lawyers to request the said newspaper to remove the portrait from their website.

It is in our view and we remain steadfast in that the image and the dignity of our President as both President of the ANC, President of the Republic and as a human being has been dented by this so-called piece of art by Brett Murray at Goodman Gallery. We are also of the view that this distasteful depiction of the President has violated his individual right to dignity as contained in the constitution of our country.

The same gallery has displayed the logo of the ANC without the permission of the ANC, with the inscription FOR SALE on it, both these portraits are a clear calculation to dismember and denigrate the symbols and the representative of the ANC, chief amongst them, the President of the ANC.

The ANC believes in both freedom of the press and artistic expression. The vulgar portrait and the dismembering of the ANC logo by Brett Murray is an abuse of freedom of artistic expression and an acute violation of our constitution, apart from being defamatory. That is why we have instructed our lawyers to approach the courts in-view of these violations and the defaming nature of the so-called President Zuma portrait titled ”The Spear”.

Issued by:
Jackson Mthembu
African National Congress

Enquiries:
Jackson Mthembu 082 370 8401
Keith Khoza 082 823 9672

The Presidency similarly published a strongly worded statement the following day:

Presidency disgusted at violation of President Zuma’s rights

The Presidency is shocked and disgusted at the grotesque painting by Brett Murray depicting President Jacob Zuma in an offensive manner.

We are amazed at the crude and offensive manner in which this artist denigrates the person and the office of the President of the Republic of South Africa.

The Presidency is concerned that Brett Murray fails to appreciate that freedom carries a deep responsibility. The President was amongst the primary architects of our Constitution and shall defend the rights enshrined in our Bill of Rights, including the freedom of artistic expression. However, in exercising these rights, people should at all times be conscious that they are not absolute.

Nobody has a right to violate the dignity and rights of others while exercising their own. Other than his position as Head of State and as President of the ruling party, President Zuma as a citizen has a right to human dignity, which is enshrined in the Constitution of the Republic. No human being deserves to be denigrated in this shocking manner.

We are also concerned that the painting perpetuates a shocking new culture by some sections of the artistic world, of using vulgar methods of communicating about leading figures in the country, in particular the President.

Intense hatred of the new democratic administration or the ruling party should not translate into distorting South Africa’s value system of emphasising respect and of ensuring that disagreements are expressed in a cultured and civilised manner, which these artists are failing to do. It is shocking as well that some media houses find this distasteful work worth displaying on their websites and are eager to publish it repeatedly.

The President reserves his rights in this matter.

Enquiries: Mac Maharaj on 079 879 3203.

Issued by: The Presidency
Pretoria

The Goodman Gallery and the City Press Resist

Both the Goodman Gallery and the City Press, which published a photograph of the image, have refused to accede to the ANC’s demands that the images be removed, the art itself removed from view and all promotional materials relating to the work, stating that doing so would amount to censorship. Ferial Haffajee wrote a column which appeared in the City Press in which she explained the paper’s position. Here is an extract of her column which is worth reading in its entirety:

Did we think the image of President Jacob Zuma by Brett Murray was particularly beautiful to persuade us to publish it? No.

Would it be something I would hang at home? No.

There is a copy stuck on my office window, along with two others from Murray’s explosively angry exhibition of satirical graphic art.

Murray, now facing a demand from the governing ANC that he destroy the work, designed some of the anti-apartheid movement’s most iconic resistance art.

Our Constitution explicitly protects artistic expression as a subset of free expression, to which its detractors will respond as they have all week: they draw the line at art that impugns presidential dignity.

But I’ve learnt that the commitment to clauses like free expression (be it in art or journalism) is never going to be tested by still lifes of bowls of flowers or by home decor magazines.

It is always going to be tested by art that pushes boundaries and journalism that upsets holy cows, which is why our clever founders enshrined the right in our Constitution.

They knew our artists and journalists would, if we stayed true to the founding South African DNA of questioning and truth-saying, need protection.

In the past week – and in the one to come – we will hear again this clash of free expression and dignity.

Not convinced, the ANC served an application on the Goodman Gallery and the City Press seeking to interdict them from “displaying and exhibiting on their website or any other platform including the online channels the offensive and distasteful so-called portrait”. What the ANC doesn’t seem to realise just yet is that its application, due to be heard in the Johannesburg High Court on Tuesday at 12:00, has already failed.

For one thing, the ANC is almost certainly on the wrong side of the law in this matter. As always, Constitutional law expert, Pierre De Vos, has published a somewhat sarcastic but insightful article on some of the reasons the application will fail. His post is titled “On the President, his penis, and bizarre attempts to censor a work of art” and is a must-read if you are interested in some of the legalities that will likely be considered including the following considerations:

The ANC may not be aware of the fact that section 16(1)(c) of the Constitution states that everyone has the right to freedom of expression, which includes ”freedom of artistic creativity”. It is true that no right is unlimited but even where the right to free expression is limited an exception is usually made for artistic expression. Our law often distinguishes between real depictions of individuals and art works and hardly ever allows for the censoring of the latter. For example, section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act (which prohibits hate speech) explicity makes an exception for a “bona fide engagement in artistic creativity”. Section 3 of the Film and Publications Act contains a similar exception.

The fact that the ANC seems incapable of distinguishing between a work of art and real life will probably ruin their legal case they are planning to launch. The ANC statement says that it has instructed its lawyers to approach the courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and to destroy all printed promotional material relating to the work. But given the protection for artistic freedom in the Constitution and the many exceptions in our law made for the expression of such artistic creativity, I am am almost 100 percent certain that the ANC’s proposed legal action will not be successful. In a democracy, courts seldom order the censoring of a work of art – even if that work of art makes fun of the President and his philandering patriarchal ways. …

Leaving aside the Constitutional rights arguments which may well include a reference to the case in the same court involving the late health minister as well as the 2007 case of Midi Television v Director of Public Prosecutions (Western Cape) in the Supreme Court of Appeal (thanks to Yolandé van Aswegen for the retweet that highlighted this for me), the ANC has lost this application because of a non-legal phenomenon called the Streisand Effect which has claimed a number of victims in the past.

The Streisand Effect Strikes Back

Wikipedia describes the Streisand Effect as follows:

The Streisand effect is a primarily online phenomenon in which an attempt to censor or remove a piece of information has the unintended consequence of causing the information to be publicized widely and to a greater extent than would have occurred if no censorship had been attempted. It is named after American entertainer Barbra Streisand, following a 2003 incident in which her attempts to suppress photographs of her residence inadvertently generated further publicity.

In this particular case, the effects of this phenomenon are appearing in search results, numerous newspaper articles covering the controversy and elsewhere online. I looked at two examples of this phenomenon at work: I ran a search for “president zuma” on Google and was presented with the following:

I then ran an image search for “‘the spear’ zuma” and was presented with these results:

This controversy is trending in South Africa on Twitter too:

Twitter - Zuma Spear trending

A more concrete illustration of how the Streisand Effect has thwarted the ANC’s efforts to censor the work came from a follow-up article focusing on the Goodman Gallery’s response to the ANC’s demands and the tremendous interest in the exhibition:

Traffic to the Goodman Gallery in Johannesburg, which has also been instructed to remove the painting by the ANC’s lawyers, has been higher than usual since City Press published the portrait on Sunday.

“Actually it’s insane here this morning,” said Lisa Koseff, a staff member at the gallery.

“I would say this is the biggest response we’ve ever had to an exhibition.”

She said there was huge interest from international media.

Major international news services like Sky News and the Huffington Post have covered this story and others are sure to follow soon.

What does this all mean? It means that regardless of whether the ANC and the President have a sound legal basis to demand the work’s removal from public view, their actions in pursuit of this (including very public statements expressing outrage and the application launched yesterday) have shone a very bright and public spotlight on what would otherwise have been a relatively short-lived and isolated amusement. The ANC forgets that the work would not just be distributed through the gallery’s website, promotional materials and coverage in the City Press but by every person who was alerted to the controversy and who tweeted, shared or blogged about it, motivated by amusement, outrage at the ANC’s censorship attempts or the simple desire to share it with their connections.

Of course the ANC and the President are entitled to express their outrage, dismay, disgust or any other opinion about the work and are free to make their views public (just as anyone else commenting on the work is entitled to express an opinion about it) but in such a connected world where media-rich news spreads across the globe in moments, they should have given more consideration to the consequences of doing so. In a very real sense, they have made a powerful contribution to their application’s ultimate failure as a means to close this Pandora’s box. As I pointed out in my post dealing with the challenges presented by online defamation:

In the 2007 Digg controversy [link added], Toshiba’s attorney at the time, Michael Avery, summed up this challenge as follows:

If you try to stick up for what you have a legal right to do, and you’re somewhat worse off because of it, that’s an interesting concept.

Update (2012-05-24): The matter is being heard in court today and some interesting comments and rulings are emerging: