Cold Play… Legal Hot Mess

What happens when a private moment becomes a global spectacle?  

In this episode of Beneath the Law, Gavin Tighe and Stephen Thiele break down the infamous “Coldplay kiss cam” scandal that captivated the internet and derailed two high-profile careers.  

With sharp legal insight and a touch of dry humour, they explore the complex web of privacy rights, defamation claims, employment law, and the darker side of public voyeurism.  

From jumbotrons and digital fine print to shareholder liability and HR consequences, this conversation turns a 15-second viral moment into a masterclass on how the law intersects with modern morality, public shaming, and digital exposure. 

Listen For

4:46 When Private Goes Public

10:18 Privacy at a Public Event?

17:56 The Legal Weight of a Ticket

29:49 Public Schadenfreude and Power

33:41 Shareholder Lawsuits on the Horizon?

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Contact Us

Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavn Tighe (00:00):

It used to be in the day you get a paper ticket, your paper ticket now is all online, which frankly probably means that there's way more fine print that can be squeezed into a webpage than there could be on the back of a ticket. But the fine print is important because the fine, a ticket is a license. Hello, and welcome to the next episode of Beneath the Law Gavin Tighe here, Stephen Thiele. We've made it. I'm

Stephen Thiele (00:42):

Here too. Yes, we had some technical difficulties here, but we're all set now.

Gavin Tighe (00:48):

Beautiful. Sunny, sunny afternoon, August in Ontario, Canada.

Stephen Thiele (00:54):

Still hot. All my strawberries have died. All my plants. The heat just scorched them.

Gavin Tighe (01:01):

Yeah, well, you're lucky they're not on fire everywhere else seems to be. That's true. So speaking of on fire, there was a, I have to say, just to back this up, I mean, if there's one, there's very few moments, well, maybe that's not true anymore, but maybe there are more than there used to be. But there are sort of unifying moments in society where everybody remembers a certain event, everyone remembers, and often they're tragic. And this one was tragic, I suppose, for some people.

Stephen Thiele (01:41):

Well, he played with fire or they played with fire and they got

Gavin Tighe (01:44):

Burned. Yeah, but I mean, you think of, where were you when nine 11? Where were you when Kennedy,

Stephen Thiele (01:53):

OJ Simpson

Gavin Tighe (01:54):

Was driving down the highway? Yeah, I mean, everybody remembers these events and another unifying event that you could go, I think anywhere on the face of the planet and ask people, Hey, do you see that video from the Coldplay concert? And it is, despite the fact that planet Earth is so fractious at the moment, we have all these disputes. There's one unifying fact, everybody has seen the video from the Coldplay concert. When you think about that, and so many people have talked about it, it does show you to my mind a little bit too though that it was everywhere for probably a 72 hour period, but sort of faded off again into the distance. But wow,

Stephen Thiele (02:42):

I don't know. This whole thing has a life of its own. It's been talk about going out in ablaze of

Gavin Tighe (02:47):

Glory of Glaze ofmy and being on fire. That was not the way you want to get famous.

Stephen Thiele (02:58):

Well, that's what happens when you're married to other people and you got your side hustle going, I guess.

Gavin Tighe (03:07):

Yeah. Well, I think there's so many angles to this. There was lots of discussion about it, but it's one of these moments of looking at an event that everyone knows about, everyone witnessed repeatedly, and I think I will say this and that I do think that it reveals kind of a bit of what I think is the darker side of human nature about how people seem to enjoy, take a kind of perverse pleasure in other people's misery. And to some extent, I think that what was clearly a very private issue became a very public problem and not just, frankly. And the other thing I think about is not just a problem for the two involved in the dalliance that was recorded on the kiss cam, but I mean, there's all sorts of collateral victims to this. I mean, I think of the families of these people, what a horrible, horrible thing to happen to them.

Stephen Thiele (04:21):

And not only are there collateral victims, but there are a lot of collateral issues. This whole thing raises from the breach of privacy that everybody's talking about in terms of their privacy to whether there was a defamation. This digs right into some fundamental employment law issues.

Gavin Tighe (04:46):

There's a ton of legal questions

(04:49):

That come out of this incident that is, first of all, I mean, it is funny, I think that we've been this, I don't dunno how many episodes of our podcast we've done, but I don't think we've ever done a podcast where we didn't start out with kind of the factual matrix. And this is the, you don't have to because everybody knows the factual matrix. But for those who just got rescued from a desert island without internet, there was a Coldplay concert in Boston. And everyone knows this. At every event ever, you go to a hockey game, you go to a whatever, there's always the show within the show is the jumbotron or whatever you might call it, where you're panning around the audience and they're getting video of people in the audience. And people get all excited when they're on the jumbotron and start cheering.

(05:44):

And they're, well, they want to be on the jumo. John, I got to tell you, I do not get that part. I don't know why do I kind of share a bit of the sentiment of our protagonists in this episode? Because I dunno the chair too, I don't really want to be on camera, but I think you've been on the camera though. I've seen you on the jumble drops. You made sure that you rubbed that in. Thanks, really appreciate that. And actually, I used to love doing this podcast. We didn't do video, but anyways, because as I've been fond seeing, I have a face for radio. So anyways, the podcast surrounds that episode where they were panning around the Coldplay concert, and of course they caught the two ERs. And I wouldn't sayi Delicto to keep my Latin and French going, but in a warm embrace, in a soft and cuddly moment. I'm not sure which song they were dancing to, but anyways, and they just scurried like cockroaches in a tenement. When you turn on the lights, it then Chris Martin, who's the singer of Cole, you got to give him credit pretty quick. Either they're hovering an affair or they're just shy.

(07:22):

Okay, pretty good. And so many issues rise out of that. Now, the outcome of this was that two people who nobody had ever heard of before all of a sudden became international superstars for all the wrong reasons. And their lives, I think I had love to do. Where are they today? Probably in a family court somewhere, but their lives came to a screeching sc Hal screeching, well talk about falling from cloud nine as Katy Perry would say. But they crashed Earth pretty quick. And from what looked to be a pretty comfortable existence,

Stephen Thiele (08:14):

I mean, the one was the CEO of a tech company, and the other one was a high level, I guess, executive. So certainly a senior management person within that company. So yeah, I think these guys have hit the ground pretty hard because of a what, 22nd kiss cam moment.

Gavin Tighe (08:35):

Yeah, I mean that was the great reveal. I mean, I do think that it was interesting that in terms of the fall, and we will talk about a few of the issues, legal issues that come out this, and people are asked, well, are they allowed to do that? Can they put people on? And as you said, lots of people are clamoring to get on those videos at all sorts of events for reasons that I said escape me. But the reality of that is there are a whole series of legal issues that come out of that, and a whole series of torts related to privacy interests and reasonable expectations of privacy. There are also arguably defamation issues in respect of what Chris Martin said immediately. I think there are probably some serious defamation issues about what the other million and a half people that tweeted or commented about it online.

(09:37):

Not that I think that either of these people are going to do anything about it, but there's all sorts of issues that come out of that. There are issues in relation to the employment of these individuals. Apparently they were both dismissed. And I have to say, and I'll put a pause on that and we'll come back to it. I think it's probably the most fertile legal ground to talk about the situation. But I think to my mind, there are some concerns that I have with regards to that and that relates to the fact that they were in a box and they weren't the only people from the company. There was another employee who was at least one other employee in the box with them.

Stephen Thiele (10:18):

I think the whole thing is weird in itself. I mean, look, I think it's been verified that the pair was having an intimate relationship. That's not, the

Gavin Tighe (10:34):

Question is did the company know

Stephen Thiele (10:35):

About it? That's not a secret now, but if you want to keep an affair secret, why are you going to a public event and doing the back hug, cuddle?

Gavin Tighe (10:46):

Wow. The way they reacted

Stephen Thiele (10:47):

In front of other people. It was the reaction.

Gavin Tighe (10:51):

It's never the sin, it's always the coverup. So it's always the reaction on that's really where the guilt is often shown. I mean, I do think that they could have played that so differently, would've been nobody would've ever heard of anything. Maybe somebody was in a concert that knew them and whatever. But if they had just been, I mean, do you honestly remember anybody who was on the jumbotron at a concert? Probably not.

Stephen Thiele (11:18):

No. And it was basically the online s sleuth.

Gavin Tighe (11:22):

Yeah,

Stephen Thiele (11:22):

Because it was the way they

Gavin Tighe (11:23):

Selected that was the

Stephen Thiele (11:24):

Issue. Right. They identified them.

Gavin Tighe (11:25):

Right, right. Yeah. That was the funny part was like, what the heck? So it was the reaction, not the action that did them in, I think. Anyways. So let's talk about, first of all, let's talk about the first issue is would the two, and I believe their names were Byron and Cabot were the, Byron was the former CEO and Cabot, the former. Was it head of people or whatever it was, or that

Stephen Thiele (11:54):

Curious title? Yeah, I think chief people officer, which basically, I think is another word to say that she was the head of human resources.

Gavin Tighe (12:03):

Right. How convenient. So the real, I mean, do you have a claim to privacy at a sporting event or a concert or a public event? I mean, can anybody and realistically thinking, taking this a little bit further, I mean, it's part of the show, right? You go to the leaf game here in Toronto and on the TV timeouts, they spend all their time panning around showing people on the jumbotron to keep the audience kind of engaged while everybody else at home has to suffer through another commercial.

Stephen Thiele (12:49):

Well, and they do all kinds of audience interactions now. I mean, the last time I went to the Leafs game, they're doing what? Putting Smurf faces on people or

Gavin Tighe (13:02):

Something like that. You're doing filters over your face.

Stephen Thiele (13:05):

They're doing the filters over you of show show, right? For which they sell a ticket and make money to which I make no money, I being served

Gavin Tighe (13:14):

Such. So if I'm a performer, let's turn this around. If I'm a performer, do I have a reasonable expectation and you're making money off my performance? Do I have a reasonable expectation of having to, can I sue for royalties or

Stephen Thiele (13:34):

I dunno, quantum Maryland?

Gavin Tighe (13:35):

Yeah, I mean, you are making money off me. And the other part of it is, oh, your ticket discounted Gavin at the leaf game. That's right. Only want to get my cat face filter on. Yeah, exactly. No, but I do think it's an interesting question because the short answer is no, you don't. And I think that there is a whole series of reasons for that. First of all, I don't think anybody can say that they go to a public event like a hockey game or a football game or a concert with any kind of expectation of privacy.

Stephen Thiele (14:13):

And Gavin, certainly in the Canadian context, there's really not much of a tort of invasion of privacy. We've got intrusion upon seclusion, but this would not ever qualify for that kind of a

Gavin Tighe (14:28):

Privacy

Stephen Thiele (14:29):

To it.

Gavin Tighe (14:31):

It sounds very, but if you actually break it down intrusion upon seclusion, I mean the name sort of says it all. There has to be, has to be seclusion like a spine. A seclusion means I'm in a private space and you're intruding into my private space. I am secluded and you're intruded. And the only case I can ever recall where that tort was successfully prosecuted was a kind of bizarre case where there was a bank employee

(15:00):

And who was, all these cases seem to have this kind of sorted romantic flavor. But anyways, it was the new girlfriend of the plaintiff's ex-husband was a bank employee, and she was snooping around in the ex-wife's bank account hundreds of times, like watching every transaction that she made and seeing where she was buying stuff. And that was intrusion on seclusion because I mean, you have a reasonable expectation that your husband, ex-husband's new girlfriend won't be snooping around in your bank account. So that was the only instance that I can, I don't know if I can recall it ever being successfully prosecuted in any other case, but I guess it's theoretically possible.

Stephen Thiele (15:59):

No, not that I'm aware of. And look, I mean the fact of the matter in the circumstances here where you're attending a concert or any kind of entertainment, sports entertainment or anything that takes place in an arena with 40 or 50,000 other people, those tickets will likely have some form of exclusion or that you have impliedly authorized, expressly authorized. Yeah, sorry that your face could be put on the big screen.

Gavin Tighe (16:39):

Yeah, I mean, I think just breaking that down for a second, it's important I think for listeners to understand, lawyers understand, but listeners understand when they get, it used to be in the day you get a paper ticket, your paper ticket now is all online, which frankly probably means that there's way more fine print that they can be squeezed into a webpage than there could be on the back of a ticket. But fine print is important because a ticket is a license. It is a license, it is permission to attend a certain event and to use a seat for a fixed period of time while that event takes place. And there are terms of the license, and fundamentally, it's a contract, it's an agreement between two parties that these are the terms of the license by which you are agreeing to the use of this facility and this seat. And in doing so, you waive all sorts of rights. You'll see oftentimes waivers of liability, et cetera. I mean, thinking of the old back of a ski ticket when it used to go skiing, there are all sorts of waivers on it, and those are meaningless. I mean, the terms of the deal whereby are what you are paying for on your ticket

Stephen Thiele (17:56):

A hundred percent. And whether you read them or not, you're stuck with them.

Gavin Tighe (18:00):

So I mean, how many times have we heard this in contract cases where someone says, well, I'm not bound by it because I didn't read it well, too bad for you,

Stephen Thiele (18:11):

Or sign

Gavin Tighe (18:12):

It, right? If you agreed to it, if you chose not to read it, that's your choice. You're still bound by it. So barring some remarkable circumstance, I think you're right. There would've been a complete agreement on the part of anybody going to that event that their images might be captured and used and broadcast and they've reached to it. So that's the end of it.

Stephen Thiele (18:35):

Yeah. Now I guess what's interesting here, Gavin, and I don't know about this particular concert, whether it was shown on some kind of live stream or rebroadcast or broadcasted over a streaming channel or whatever, but it was certainly played within the venue. I mean, I guess that raises an interesting question with respect to people who republished the video from inside the arena to outside the arena IE over the internet and to the public, and whether they've breached any privacy. I think that's been one of the comments that I've seen, right? Because it's kind of like commercializing what took place inside the arena. But the answer to that is,

Gavin Tighe (19:23):

Has got to be, I think fundamentally the guts of the agreement, the guts of the licenses, is that the product, you agree that your image can be captured. You agree that the rights to that image and belong to the venue or whomever, the broadcaster or whomever, and it's theirs to sell, it's their rights then, isn't it? To once you've seeded your rights over and you've handed those rights over to a third party, it's their issue to come back and say, no, no, no, we want a royalty For every time the Coldplay kiss cam video was shown, probably make more money than the tour.

Stephen Thiele (20:07):

Well, I'm sure people have financially benefited with all the clicks on YouTube for this thing. And look, I mean, we've talked about it in the Canadian context, certainly there is no breach of privacy. One of the comments though that I have seen is that the United States has other privacy protections, and one of those is the public disclosure of private facts as being a potential tort. And I've seen some commentary that maybe there is a bit of a crack in the door for both the Byron and Ms. Cabot to use that tort as a potential claim for damages for breach of privacy. Honestly, I don't know how that works. We're not US lawyers, but there's certainly that tort that might be available

Gavin Tighe (21:05):

To them. Yeah, I mean, I don't know anything that tortoise is not something that I'm familiar with, certainly not in Canadian law, but just even going on the point I come back to my sort of breaking down the intrusion on seclusion, public disclosure of private facts. I mean, you get to the same question to my mind. I mean, there has to be a seclusion to intrude on, and it's pretty hard to say that there was a seclusion in an arena with 20,000 people in it. I mean a seclusion. I mean, it's not the bathroom stall. It's like you're in the public area. So what's the private fact? There is no private fact. I mean, there's no private.

Stephen Thiele (21:49):

Well, exactly, that's what I was, you made it a public fact earlier. Exactly. What's private if you're standing in a box cuddling with your paramore as you call them, right? How is that private anymore? Because you decided there's a

Gavin Tighe (22:06):

Bunch of people around. I mean, the reality of it is that there would PDA or public displays of affection if you to choose to do it. If you choose to do something in a public place, it's public too bad. I mean, you've made that decision as to where you were going to display that affection. And ultimately, I don't know that you got any private fact. Certainly it would seem to me you'd have a very, very, I think the court would laugh at, and first of all, boy, talk about the masochist club if you're going to be the, they've had enough pilly, and can you imagine if they brought a lawsuit about it? Oh my goodness.

Stephen Thiele (22:48):

Wasn't there a TV show once? I'm not sure if it's still on a reality show where somebody would go around and catch cheaters.

Gavin Tighe (22:59):

Yeah, well, that's an interesting question because that was the opposite. That was people going out as private invest investigators. They were hunting other, their para abode, and that would arguably be private. I guess the fact that they drove there on a public street and parked their car and the time they parked and the time they left is not private. I think if they were sticking the cameras in the window and seeing what went on inside, then I think that might be different. But I think that it'd be difficult to say that where you walk on a public street or where you park your car using a public highway is private. How would it be private?

Stephen Thiele (23:49):

I don't know. Certainly not in common law. I thought there was once a case out of Quebec where somebody took a photograph of somebody sitting on the front porch or something, and that was considered to be a breach of the person's privacy. But certainly not in common law jurisdictions. If I take a photo of use, if I take a photo of somebody who's walking drunk or on drugs on the street down the sidewalk, I guess that's not a breach of privacy, right? No.

Gavin Tighe (24:20):

No, I don't think it is. I mean, there are cameras literally, we live in a society now where everything's on video. I mean, everybody's got a video on their doorbell, and certainly government has videos all over the place. And we live in a city that is infested with speed cameras. I've got one right here. Well, everybody's a cinematographer. So yeah, I don't think that would get any traction as far as the defamation claim goes with. I mean, that would definitely laughable. I mean, the comment by Martin was bang on the money. They were both shy having an affair and shy about the fact they were having an affair apparently. So truth is a complete defense to a defamation claim.

Stephen Thiele (25:13):

And I think everybody watching that would've said, Hey, are they having an affair?

Gavin Tighe (25:18):

So that's also a fair comment. In order to be defamatory, there has to be false.

Stephen Thiele (25:23):

There was no malice.

Gavin Tighe (25:25):

You can't defame somebody by telling the truth. It has to be a false statement that would lower someone's reputation in the eyes of a reasonable person. So you don't get past the first clause. It's not a false statement. It was true on both counts and as you point out a fair opinion to draw from the objective fact of what everybody saw on the video. So yeah, strike, you are not even getting to the plate on that one, let alone to first base. So I think that the whole issue then is what's the fallout? We know that there were terminations, and I said before I said parenthetically, I wanted to come back to that point because it seemed to me that okay, the rest of the world didn't know. I don't know. Nobody really knows if the spouses, nobody really knows what the family situation was of these two people.

(26:29):

For all anybody knows their spouses were aware of it. I don't know. Maybe they were, but assuming they weren't. But I mean it certainly, as I understood matters, there was another employee of the company in the box, and I said, that would strike me as pretty weird that talk about drawing attention to yourself. If you had a box at a large stadium, which usually holds like 20, 30 people or more, and you've got two people in it, I think people will be looking at what's going on here. A box ain't cheap. And so that seems to be something that, who are those two? They've got a box. I mean, it's kind of like when you see somebody walking off of a private jet and go, who's that? I mean, it tends to actually draw attention, not the other way around.

Stephen Thiele (27:26):

No, for sure. And in the employment context, and we don't know, I mean we certainly haven't seen anything we'd be speculating, but where you've got two people in a same offense environment or workplace environment, having a relationship with one another and one of them, what is he, the CEO of the company and another person, what did the company know? Did the company investigate? Certainly in the Ontario context, it's my understanding that if there is some kind of relationship of some type between two coworkers, that there may be an obligation for the company to investigate, particularly where there seems to be a power imbalance between the two people who are involved. One being a high level employee versus a low level employee. Is the lower level employee being taken advantage of? You raised the issue about the box. Was it the company's box? Were they private tickets? Was somebody using the funds of the employer to pay for their sneaking away and having their trust at this point in time? I mean, that's potentially dishonesty in terms of using employer's money to feed your romantic liaison with somebody. I mean, we saw the mayor of Toronto resigned when he used taxpayers money to have his young girlfriend 10 trips. So

Gavin Tighe (29:07):

I do think that people do take this incredible pleasure in feasting on the salacious details of some other people's, particularly the downfall of people that are seen as being in positions of power or authority or success. And I get it, everybody feels that way. There is a natural tendency, I think, Icarus, and that's watch those, it's joyous to watch those who fly close to the sun, crash to earth. But at the same time, it's not the most,

Stephen Thiele (29:49):

No, well particularly, yeah, sure. But I think Gavin, I think the reason that people take pleasure in that is that if I'm the ordinary employee who was doing that, I'd be kicked down the road so fast to know the company that in a heartbeat I'd be gone.

Gavin Tighe (30:12):

Yeah, I mean, this was a really interesting question because this was a public company and I don't know what the effect of all of this. I mean, to be perfectly honest with you, and I am not a tech character as the fact that I couldn't log on the podcast for 15 minutes will attest. But I mean, I never heard of this company before. I mean, I mean I was just expect that other than a bunch of computer nerds that nobody, not many people had heard of it. I dunno what their stock was doing or what their software was. I dunno anything about the company. The only thing I know about the company is they were the kiss cam people. That's it. So what did that do to the share price? The CEO has laws, everybody talks about what is this, A CEO's job in a public company fundamentally is to increase shareholder value. And this little activity, if nothing else, was completely antithetical to that fundamental obligation.

Stephen Thiele (33:31):

And just on that notion, Gavin, would the company be liable or would he be personally liable for the tanking? Let's say I sue the company, I'd third

Gavin Tighe (33:41):

Party him. If the company had a duty to know if the company had a duty to prevent, if it was reasonably foreseeable, why would the company not be a proper party?

Stephen Thiele (33:52):

I don't know. But it might be that we will have another podcast in the future on this depending on what kind of lawsuits

Gavin Tighe (33:58):

Come out of this. When you start to turn everyday events around stuff that everybody knows, you start to look at them through a legal lens. It really, I think it is interesting to see how would the law treat a cax that everybody knows about and what are the ramifications of that? And I'm always reminded of, I remember when I was a kid, I used to watch the paper chase. You walk through these doors thinking and you leave thinking like a lawyer, and it'd be like exactly like that. Thinking like a lawyer. Where is the claim? Where is the loss? Who is the potential plaintiff? Maybe it's the people that nobody thought about. Maybe it is the shareholders. I'm sure someone else has thought of it. In any event, Stephen, great topic, great discussion. We could probably go on and on and on and on. It's

Stephen Thiele (34:42):

Amazing. I think this is our longest podcast. Everyone thought

Gavin Tighe (34:46):

For an event that literally took, what, about 15 seconds? Yeah, so it's amazing. You get two lawyers together, they can stretch 15 seconds into 15 years as most trials will attest. And thank you for listening, and please send us your comments, feedback. We got some great feedback on the last podcast that we had. We're really, really, really grateful for that. And so please keep it coming. It's really encouraging to know people are actually listening and great when we can interact. And if you've got ideas or thoughts for future podcasts, please send them along. We'd very much like to hear from you, Stephen

Stephen Thiele (35:28):

And Gavin, just to throw it in. Byron and Ms. Cabot, we're certainly not above the law because

Gavin Tighe (35:36):

If no one is above the law, everyone is beneath it.

Stephen Thiele (35:40):

A hundred percent.