Coldplay Kisscam Case: Why There's No Privacy in Outdoors

Andy Byron and Gianni Minisichetti. Two names unknown to the lay public, but who have hit the headlines for "photographic" incidents involving privacy, image rights, and ownership of third-party content.

The first is the CEO of Astronomer, an American software house, and a few days ago he was filmed with a woman other than his wife by a kiss cam during a Coldplay concert in Boston , with the image going viral. The second is an internationally renowned Italian photojournalist who recently won a lawsuit against Meta, held liable by the Turin court for failing to delete a copyrighted photo taken by the journalist of Oriana Fallaci .

The two cases, however different, represent two aspects of the same problem, that of the limits on the exploitation of personal images by subjects other than the individual portrayed.

The Byron Case: There's No Privacy in the Open

In Byron's case—although a "breach of privacy" has been (timidly) argued—there's little to complain about. Even in Italy—where the Supreme Court of Cassation has repeatedly affirmed the legal principle—there's no reasonable expectation of privacy in public places. This means that photographing or filming someone in public spaces doesn't constitute the crime of unlawful interference with private life (the only true law protecting privacy).

This is even more true if the filming takes place during a public event—a concert, a demonstration, or a show—where purchasing a ticket may actually imply granting the organizers the right to financially exploit the spectators' image. This is what happened during the Coldplay concert, where the kisscam was an integral part of the performance, so much so that the singer himself requested that certain scenes be filmed for projection on the giant screens.

Therefore, in such a context, it would not even be (easily) possible to invoke the protection of personal data to complain about what happened, given that the fateful recording took place in real time and became “news” because the Coldplay singer drew attention to what was being viewed at that moment.

The photographer has total control over the images he creates

In such cases, the only limit is respect for the dignity of the person, which is why it is not possible to exploit images of people in difficulty or in embarrassing, humiliating, or degraded conditions.

There are exceptions to the exceptions for journalistic or documentary work that performs a social function of denunciation or information, but the essence of the facts remains the same: the images belong to those who create them and those filmed have very limited possibilities to oppose their circulation.

Many celebrities like Ozzy Osbourne , Miley Cyrus or Ariana Grande know this well, as they have had to face legal action for having used without authorization photos of themselves taken freely by photographers in various contexts.

The Minisichetti case: platforms are liable if they fail to remove content reported as illegal.

Which brings us to the Minisichetti case: a legal action launched against Meta for failing to follow up on a request to delete an image of Oriana Fallaci that the journalist had taken in New York in 1972 and which had been bouncing around many Facebook profiles for some time.

The Turin court, applying a principle established in 2000 by the EU Directive on e-commerce, ruled that Minisichetti's complaints were sufficiently well-founded to trigger the obligation to remove the content used by users of the social network.

In this regard, one could debate at length whether the EU's obligation is legitimate—it's not up to private individuals, but to judges, to decide whether something is illegal or not—and whether, by doing so, the EU has essentially privatized justice, neglecting the protection of citizens' rights. But what matters immediately is the possibility of obtaining compensation from platforms (social networks, but also newspapers and blogs), and not (only) from those who use others' works without their rights.

Not all content is protected by copyright equally.

This is particularly relevant because, under copyright law, not all content is protected, and therefore, not all content can automatically be deleted or compensated.

Generally speaking, a text, a piece of music, or an image are protected by law provided they are an expression of human creativity. In the case of photographs, there is even a distinction between "photographic works" and "simple photographs." The former are those that achieve the status of works of art (in case of doubt, judicial intervention is required), the latter are those that do not "transcend" to a "higher level" and over which the photographer has more limited rights. Finally, the law— whose authors could not have been aware of Vittorugo Contino's work on Ezra Pound's writings —does not grant any protection to photographs of writings, documents, and projects.

Protect content regardless of copyright?

Broadening the terms of the reflection, it must be said that this approach, which conceptually dates back to the 19th century, is clearly unsuitable for protecting the content industry and individual "content creators" because it does not take into account the radical change caused by the spread of content-sharing platforms.

Today, content has value not because it's creative, but because it can be sold or "monetizable." In other words, to stay with this specific case, it doesn't matter whether the "content" is a "real" photograph or an AI-generated image, nor whether it can be protected by copyright, because regardless of how it was created, what matters is whether it can be exploited for profit. And there's no need for a specific law, because at least in Italy, even if a "content" isn't "creative," it's still protected.

The venerable Article 810 of the Civil Code—dating back to 1942—establishes, in fact, that "goods are those things that can be the object of rights." Therefore, it matters little whether an image was created with a photographic burst (where the photographer therefore has no creative role) or via text-to-image: the result belongs to whoever produced it (who can therefore exploit it), even if copyright does not apply.

Overcoming copyright to protect the individual

Following this reasoning, it is clear that if the concern caused by the Byron and Minisichetti cases concerns the control over personal image in public spaces and the repression of its abuse, it is evident that neither "privacy" nor copyright can be instruments of protection.

Persisting in this direction leads to paradoxical consequences , such as advocating, in the name of "privacy," anti-facial recognition systems that in Italy could violate the Consolidated Law on Public Security . Or, like the Danish proposal to recognize "copyright"—that is, authorship—on facial features and voices to combat deep-fakes , which, evidently, has nothing "creative" about it.

Certainly, then, the right to the protection of one's personal image (also dating back to 1942) is a more effective tool than "privacy" and copyright to protect the way we live when we are in open spaces.

Is it impossible to protect yourself?

However, moving from university classrooms to real life, faced with the enormous number of individuals disseminating content in even greater quantities, even this weapon proves ineffective when used against the perpetrators of violations. They are too numerous, too widespread throughout the world, and often commit acts that fail to raise enough social alarm to justify state intervention to protect the community.

While, in some ways, it seems pragmatically correct to "take it out" on gatekeepers, the platforms that allow the circulation of user-published content, on the other hand, the price we pay is to relieve the state of its duty to enforce justice. In doing so, we leave the protection of our rights to the acceptable user policies or terms and conditions, which, of course, we all read, understood, and accepted before clicking the "submit" button.