Can art criticism ever be defamatory?

Aurea Kevill thinks considering the implications ’is worthy of a law school exam’

Frieze, London's leading contemporary art fair, created a buzz around the capital's art market last week as critics, curators, artists and the general public flocked to Regent's Park to view the hundreds of works on display. Meanwhile, in Boston, Max Geller's Instagram account, followed by thousands of people and entitled 'Renoir Sucks at Painting', has created a buzz of a more disparaging nature, proving that even old, familiar art can provoke criticism.

When asked by The Guardian why Geller and his fellow protestors object to Renoir's paintings so much, Geller responded that 'in real life, trees are beautiful. If you take Renoir's word for it, you'd think trees are just a collection of green squiggles.' The protestors are demanding that the Museum of Fine Arts take down its Renoirs.

Geller is not the first art critic to attack a painter's work. In 1878 Whistler sued the critic John Ruskin for libel. Ruskin had been highly critical of Whistler's paintings, in particular the impressionistic Nocturne in Black and Gold – The Falling Rocket. Ruskin wrote that Whistler's work was like 'flinging a pot of paint in the public's face', prompting Whistler to take the matter to the courts.

Whistler won the case, but was only awarded an insulting farthing and no costs, instead of the ’1,000 he claimed. The case left both men devastated financially and it was a huge blow to Ruskin's ego.

The application of laws of possible defamation (and the additional complicating jurisdictional issues by virtue of the manner in which Geller voiced his opinions on Instagram, as well as the widespread reporting in the press of the issue and the location of the museum) is worthy of a law school exam question. Certainly the layman would hope that 'speaking ill of the dead' is not an actionable offence wherever it is committed.

My 'layman's' view regarding his criticism is that the protestors should stop to consider that art is extremely subjective. Galleries and art fairs such as Frieze are filled with art that may be to one person's taste but not to another's. Impressionist works of art, such as that by Renoir, were disliked by many at the time the Impressionist artists were painting.

The very term 'Impressionist' was intended to be derogatory, just as the term 'Fauve' used to describe a later group of artists was also meant unfavourably, referring to the work that they produced as appearing to be produced by 'wild beasts' ('fauves' in French).

In a sense, the criticism of Geller and his band of supporters is in no way different to what people said at the time about the Impressionists' work. The paintings, including the trees that Geller highlights, were meant to be like an impression, incorporating the effect of light and movement, instead of capturing a reality as in the paintings preceding Impressionism. As a result, contemporary critics said that the work appeared unfinished and amateurish in quality.

However, with my art 'lawyer' hat on, the issue for any gallery faced with a similar demand is that its obligations vis-’-vis the display (or withdrawal) of any item in its collection should be determined by reference to the terms of its own constitution, and any enforceable conditions imposed on the gift or loan of the artwork itself. Much less salacious, however.

Aurea Kevill works at boutique private wealth law firm Maurice Turnor Gardner LLP