Once upon a time … when art was confined to the walls of a gallery

Time will tell what the broader ramifications might be of the events triggered by the seizure of Bill Henson's work from the Roslyn Oxley9 gallery in May 2008. The sight of police removing works of art from a gallery has inevitably caused concern that artists are now working under increased scrutiny. Subsequent talk of codes of conduct for the involvement of children in the production of visual art will make some very wary of working in this area. On the other hand, at the end of the day the art was deemed suitable for public viewing, returned to the gallery and there were no criminal prosecutions.

What the events demonstrated most clearly was that visual art can circulate among much wider audiences than one might first think, and in ways that were not considered when the broad framework of Australia's classification and censorship laws was established. The reaction to the Henson images was fuelled by the manner in which the work made its way into the public eye: as an image on an invitation sent by post and email, sourced on the internet and, later, as a crudely censored image in newspapers. Context is everything and the display and circulation of images in publications and on the internet operate within different regimes of law than those that apply to a work of art that is displayed within the sanctity of an art gallery.

This particular point did not escape the drafters of early UK censorship legislation. When the Obscene Publications Act 1857 was debated in the United Kingdom parliament, members were anxious about the status of explicit artworks in their private collections. Reassurance was given that the proposed legislation would not extend to such works. The intention of the legislation, they were assured, was not to capture works such as the masterpieces of Correggio 'kept for the owner's contemplation'; rather that the Bill was designed, 'for the mass of impure publications, which was poured forth on London, to the great injury of the youth of the country.'

These comments reflected the view that art was not for everyone, nor was it to be seen everywhere. The sentiments were clear – some people understood the nature of art and others did not. These views might be considered to be specific to their time, yet similar sentiments were implicit in the more recent debate.

Art is increasingly available to wider audiences: institutions are striving to increase the number, and diversify the composition of, their visitors and private galleries constantly seek to build their customer base. As a result art is circulating in new and innovative ways and in so doing, crosses into different regulatory regimes. Even when exhibited in the gallery space, energetic marketing campaigns ensure that knowledge of the existence of the art extends well beyond those who might see it in the gallery. As much of the debate concerning the display of Andres Serrano's Piss Christ at the National Gallery of Victoria in 1997 took place before the exhibition had opened, the reaction clearly did not derive from a direct encounter with the work. Whatever the original site of artistic activity and display, reproductions now appear in any number of media.

In other words, conventional boundaries around the viewing of art and traditional notions of art audiences are breaking down. Good news you might think. However, this may present very real problems for the notion of artistic freedom. When visual art circulates outside the gallery it is in danger of losing its privileged status under the law. Art that is posted on the internet can find itself entangled in a range of regulatory schemes, most notably the provisions of the Broadcasting Services Act 1992 (Cth). Online access to material that is refused classification (under the film and literature classification scheme) is prohibited and before access can be provided to content classified R18, sites are required to obtain user identification details.

If there is a logic which underpins the complex range of legal treatments of art practices it appears to be that the more widely available the work, the more stringent the regime of classification or censorship: art in a gallery is treated very differently to images appearing in a book. In 1996 Sydney's Museum of Contemporary Art successfully and without drama, staged a Robert Mapplethorpe retrospective containing many of his provocative photographs. In 2001 a book of Mapplethorpe images The Perfect Moment, which had been freely available for some time in Australia, was classified 'Category 1 – Restricted', thereby ensuring that it was, from then on, only available for sale to persons over 18 and displayed in a sealed wrapper.

So where does this leave those artists who work with children? Clearly if a law is broken in the making of the work then its art status alone will not save the artist or the art. But criminal charges for the production of child pornography require the satisfaction of a number of criteria before being laid, let alone successfully prosecuted. The seized Henson works clearly failed to meet these requirements. On the other hand, working with children is regulated in many areas and in other creative spheres. The visual arts may need to prepare itself to argue a 'special case' if children, as subjects of an artwork, are not to be treated in the same manner as child actors in live theatre or film.

In the meantime, if we can learn anything from the recent events it would appear that the delicate balance between art and the law is working: questions were asked, the art survived and there was a public discussion of the sort that very rarely happens… prompted by the art. This debate brought to the surface a range of views that deserve to be canvassed – and some of the discussion illuminated very complex areas. If we ask of art that it expand our thinking and take us places we have not been before, then perhaps we should not be surprised if from time to time it faces censure.

Kate McNeill is a lawyer and lecturer in Arts Management, School of Culture and Communication, University of Melbourne.