How legitimate is climate protest in museums?

Introduction

In recent years, climate activists have attracted worldwide attention through their high-profile protest actions in museums. Iconic works of art such as Van Gogh's "Sunflowers," Vermeer's "Girl with the Pearl Earring" and Jan Van Eyck's "Madonna with Canon Joris van der Paele" became targets of actions in which activists glued themselves to protective glass or threw liquids on works of art. These protests raise important legal questions about the limits of the right to demonstrate, freedom of speech and the protection of cultural heritage.

As a specialized law firm, we analyze the legal consequences of these protests and the recent case law related to them in Belgium and the Netherlands. This contribution provides objective information on the legal framework within which such protests are assessed, and may be relevant for museums, art institutions and other stakeholders in the cultural sector.

The phenomenon of climate protests in museums

Typical actions and intentions

The protests usually follow a similar pattern: activists, often affiliated with organizations such as Extinction Rebellion or Just Stop Oil, smear protective glass walls of well-known works of art with a liquid (such as soup or ink) and/or glue themselves to the protective wall or wall. In doing so, they often wear T-shirts with slogans and carry banners with messages about climate change.

The activists deliberately choose iconic works of art that are known worldwide. Their message is provocative: they argue that society seems more concerned about protecting works of art than about protecting the planet and its inhabitants. Through spectacular actions, they want to awaken public opinion to what they consider an ecological emergency.

Reactions and social debate

These actions have provoked heated reactions, with some expressing understanding of climate change concerns but disapproving of the method, while others fundamentally reject any attack on cultural heritage. A debate is also emerging about the role of museums in the social conversation about climate change.

Museums have taken additional security measures in response to these protests, such as banning liquids or strengthening protection around precious works. This affects the museum experience for all visitors.

The legal framework in Belgium

Article 526 Criminal Code

In Belgium, Article 526 of the Criminal Code the main legal basis for the prosecution of protest actions directed against works of art. This article specifically criminalizes in its fourth paragraph: the destruction, taking down, mutilation or damage of "paintings or any works of art placed in churches, temples or other public buildings."

The third paragraph of the same article protects monuments, statues or objects intended for public benefit or public adornment and erected by the competent authority or with its authorization.

Broad interpretation of "damage"

A crucial element in the application of Sw. 526 is the interpretation of the term "damage." Both legal analysis and case law show that this concept is interpreted broadly. A damage may already exist when:

• The item has undergone a reduction in its utility or value
• The item has become unfit for the use for which it was intended, even temporarily
• The integrity of the object has been compromised and it has been moved beyond its normal state of being, even if only temporarily

This means that actions that do not cause permanent property damage can also be covered by the criminalization.

Justice: the case of the Bruges Groeninge Museum

Fact Sheet

On July 19, 2022, a climate activist glued his right hand to the protective wall of Jan Van Eyck's painting "Madonna with Canon Joris van der Paele" in the Bruges Groeninge Museum. On the floor was a black flag of Extinction Rebellion. Police officers could not remove the hand themselves, so specialized museum staff had to come to the scene to loosen it without damaging the artwork.

The same activist was later involved in a similar action in the Mauritshuis in The Hague, where he glued his forehead to the protective wall of Vermeer's "Girl with the Pearl Earring" while another activist poured red liquid over him and the painting.

Judgment of Bruges correctional court

The Correctional Court of West Flanders (Bruges Division) ruled in its judgment of November 13, 2023, that the sticking to the protective wall of the painting constituted an act of damage within the meaning of Sw. 526. In doing so, the court considered the work of art and its protective wall as one whole, materially and functionally connected. The normal essential condition of the painting - namely that it can be viewed freely and unhindered by museum visitors - was disturbed by the action.

Also important was the fact that this was an exceptionally valuable work of art, protected as a masterpiece by the Flemish Community and recognized by UNESCO as a world heritage site. The court found it proportionate to prosecute such actions criminally, despite the defendant's invocation of his freedom of expression.

Appeal decision

The Ghent Court of Appeals confirmed the guilty verdict in its judgment of June 26, 2024. The Court ruled that freedom of expression does not provide a license for criminal acts and that the damage to the protective wall, which is for the public good, was proven.

Both at first instance and on appeal, the favor of suspending the sentence of conviction was finally granted for a period of three years. This means that no sentence was imposed, provided the defendant does not commit new offenses within that period.

Justice in the Netherlands

Dutch legal basis

The Netherlands lacks a specific criminal provision for damaging works of art. Prosecution there is based on:

• Article 350 Penal Code: criminalization of intentional and unlawful destruction, damage, rendering useless or removal of property belonging to another person
• Article 141 Penal Code: overt violence likely to disturb public order

The Case of the Mauritshuis

In the Dutch case surrounding the "Girl with the Pearl Earring" the District Court of The Hague ruled on November 4, 2022 that the activists had been guilty of co-perpetrating vandalism. The painting had been rendered temporarily unusable because it had to be removed from the public space for inspection and cleaning.

At first instance, the court imposed a prison sentence, but on appeal reformed the Court of Appeal in The Hague this judgment in its March 11, 2024 ruling. The court recognized climate change concerns as the background to the facts and decided not to impose a sentence or measure, despite the evidence.

Freedom of expression versus protection of cultural heritage

Applicability of Article 10 ECHR

A crucial aspect in these cases is whether climate protests in museums enjoy protection under Article 10 of the European Convention on Human Rights (freedom of expression). Courts in Belgium and the Netherlands have given different interpretations on this.

The Ghent Court of Appeals, in the June 26, 2024, ruling already mentioned, ruled that sticking to a protective wall had little connection to freedom of expression, since the painting and the museum had nothing to do with the denounced climate policy. The Dutch judges implicitly assumed that the actions could be considered expression, but then examined whether the criminalization constituted a justified restriction.

Symbolic acts as speech

In addition to the spoken or written word, symbolic acts ("symbolic speech" or "symbolic conduct") may also enjoy protection under the right to freedom of expression. Relevant here is:

• Whether there is a clear connection between the action and the message
• Whether the act is suitable to be understood as a means of expression by the public
• Whether there is an intrinsic connection between the act and the content of the expression

Justified limitation?

Even if protest actions are considered speech, their criminalization may be justified if they:

1. By law is provided
2. Pursues a legitimate goal
3. Necessary in a democratic society

In both countries, the courts ruled that the criminalization of the protests met these conditions. The protection of cultural heritage was considered a legitimate goal that could justify a restriction on freedom of expression. This took into account that there are sufficient alternative ways to express an opinion on climate change without endangering precious works of art.

Legal Considerations for Museums and Cultural Institutions

Museums should be aware of potential liability risks in protest actions. In addition to protecting the artworks themselves, they may be held liable for damage to loan works or for incidents of interventions against activists.

Some recommended preventive measures are:

• A legally conclusive visitor regulation with explicit provisions on improper conduct
• Specific provisions in loan agreements on risk sharing in protest actions
• Protocolized intervention procedures for staff
• Custom insurance coverage

Legal considerations for climate activists

Effective protest within legal limits

For climate activists, it is important to understand the legal consequences of their actions. Recent case law shows that:

• Actions directed against works of art, even without permanent damage, can be criminally prosecuted
• Invocation of freedom of speech does not automatically provide protection
• Courts distinguish between message (climate issue) and method (heritage damage)
• Alternative protest methods that do not include criminal offenses are legally stronger

Legal assistance in prosecution

For activists prosecuted for protest actions, it is essential to:

• Directly seek legal assistance
• Understand the precise legal characterization of the charged facts
• Be able to substantiate the proportionality of their actions in the context of freedom of expression
• Alternative sanctions such as suspension to be advocated if found guilty

Conclusion: a balanced legal approach

The recent case law on climate protest in museums illustrates the delicate legal balance between fundamental rights (freedom of expression, right to peaceful manifestation) on the one hand, and the protection of cultural patrimony on the other.

For both sides of this social debate, it is essential to understand these legal nuances. Museums have the right and duty to protect their collections, while climate activists want to voice legitimate concerns about climate change. The law provides frameworks for both, but also sets limits when certain methods of protest infringe on other protected interests.

A deep understanding of the legal context can contribute to a more constructive social conversation about both climate change and cultural heritage.

How can our office assist you?

Our law firm provides legal assistance to all parties involved in this complex matter:

For museums and cultural institutions:

• Preventive legal audits and risk assessments
• Drafting legally conclusive visitor regulations
• Adaptation of loan agreements and insurance coverage
• Legal support for incidents and claims
• Representation in criminal and civil proceedings

For climate activists and action groups:

• Legal advice on the limits of lawful protest
• Strategic guidance on designing effective, legal protest actions
• Legal assistance in arrests and criminal prosecutions
• Defense of fundamental rights such as freedom of expression
• Negotiation of alternative sanctions and remedial measures

Contact us for a free consultation

Whether you are a museum, gallery, cultural center seeking to protect yourself from potential protests, or a climate activist or action group concerned about legal risks and rights - our firm offers an independent and expert analysis of your specific situation.

Our attorneys understand the complexity of these matters and the important societal interests at stake. In a free initial consultation, we will be happy to discuss your questions and concerns and suggest a customized strategy.