When does an Oscar speech become defamatory?

In recent years, it has become the norm for presenters and winners alike at the Oscars to use their stage time to make political statements. However, politics at the Oscars has not always been so accepted. We take a look here at the shifting attitude of the Academy towards politically-charged speeches, and whether they may cross the legal line into defamation.

And the award for Most Political Speech goes to…

• 1973 - Marlon Brando declined to accept his Best Actor Oscar for The Godfather, and instead sent Sacheen Littlefeather, president of the National Native American Affirmative Image Committee, to protest the stereotypical portrayal of Native Americans in film and television. The audience booed Brando for criticising the Academy, and the Academy subsequently banned winners from sending proxies to accept.

• 1993 - Susan Sarandon and Tim Robbins used their presenting slot to protest the U.S Government's detention of HIV-positive Haitian refugees at Guantanamo Bay. The Academy said the stunt was 'outrageous', 'distasteful' and 'dishonest', and banned the pair from attending future Oscars. Richard Gere was also banned for speaking out regarding the mistreatment of Tibetans at the hands of the Chinese Government. All three were allowed to return to the awards years later.

• 2003 - Michael Moore lambasted George W. Bush for the Iraq War which had commenced only days prior, stating 'we have a man sending us to war for fictitious reasons… Shame on you, Mr Bush, shame on you'. This was met with boos from the audience and Moore was promptly played off stage by the orchestra.

• 2009 - when accepting his Best Actor award for Milk, Sean Penn spoke out against 'Prop 8', a piece of legislation recently passed in California which effectively banned gay marriage, stating 'we've got to have equal rights for everyone'. This was met with wide applause from the audience.

• 2018 – last year politics and current affairs seemed to dominate the whole show: host Jimmy Kimmel took swipes at both President Trump and Vice President Pence in his opening monologue; presenters Lupita Nyong'o and Kumail Nanjiani spoke out to support America's 'Dreamers'; and Frances McDormand asked every female nominee to stand during her acceptance speech to urge further inclusion in Hollywood. These moments were met with support and applause, showcasing the shift in attitude from the Academy Awards of old.

Defamation?

While political (and sometimes controversial) speeches now seem to be accepted by the Academy as part of the status quo of the Oscars, the nature of some of the comments made on stage could be argued by some as verging on defamation.

The Oscars will take place in the Dolby Theatre in Los Angeles on 24 February 2019. The question of whether any of the speeches on the night will amount to defamation will be a question of federal and Californian state law. Criticisms directed at particular celebrities or politicians are unlikely to result in a claim for defamation, due to the requirement for actual malice on the part of the defendant where the claimant is a public figure. To show actual malice the claimant must prove that the defendant acted with knowledge of the falsity of the defamatory statement or reckless disregard for whether it was true.

First amendment rights are taken very seriously in the US and a high level of protection is afforded to individuals who make potentially defamatory statements about public figures. The requirement for actual malice, as well as the burden of proof lying with the claimant to establish the falsity of the defamatory statement indicates the broadly "pro-speech" nature of American defamation law.

In the UK, by contrast, the falsity of a defamatory statement is presumed, with truth being a defence to be pleaded and proved by the defendant. Further there is no requirement to prove actual malice or even negligence on the part of the defendant. The claimant does not need to establish any sort of intention to defame on behalf of the defendant. A claimant will succeed in a defamation claim if they can prove that a statement was defamatory and the defendant is unable to establish a defence.

The tighter UK defamation laws may explain why everyone was on their best behaviour at the Baftas. The winners at the Oscars may take a few more risks with their speeches without too much concern that they will end up in court.