On-stage kiss should not make band members liable, court hears

Individual members of The 1975 should not be held responsible for Malaysian authorities closing down a Kuala Lumpur festival after frontman Matty Healy kissed one of his male bandmates on-stage, the High Court has heard.

During the band’s performance at the Good Vibes Festival in July 2023, Healy addressed the audience in a profanity-laden speech before kissing bass player Ross MacDonald.

Homosexuality remains a crime in Malaysia which is punishable by up to 20 years in prison and caning.

The weekend festival was cancelled on its opening night as a result, with the Malaysian government criticising Healy’s conduct while blacklisting the band from the country.

Festival organisers Future Sound Asia (FSA) claim The 1975 Productions LLP breached their contract following the incident and that all four band members owed a duty of care.

FSA is seeking damages of £1.9 million in “substantial losses”.

In a hearing on Wednesday, the band’s lawyer Edmund Cullen KC described the claim as an “illegitimate, artificial and incoherent” attempt “to pin liability on individuals”, the PA news agency reported.

He said it was “really quite bizarre” that the individual members should be held liable as FSA had a contract with the band’s company only.

“The allegations of breaches of a duty of care are not breaches of a duty of care at all,” he said.

“They are breaches of Malaysian statutes and guidelines. That is why this claim is completely artificial against my clients.”

He asked the court to strike out the claim against the band members as individuals and for it to proceed against the company only.

In written submissions for FSA, Andrew Burns KC, said The 1975 – who were due to be paid 350,000 dollars (£274,000) for a one-hour performance – “deliberately behaved in a way to challenge and provoke the Malaysian authorities”.

The band first played the festival in 2016, agreeing at the time not to swear, smoke, drink, take off clothes or talk about religion and politics on stage, he noted.

But they “planned provocative conduct” in 2023, which included a bottle of wine being “smuggled” on stage, a “second-rate set of songs” to “punish and upset the Malaysian audience and authorities” and an “obscene speech”; as well as the kiss which courted much publicity online, the submissions claimed.

“This is also a case where they could be argued to have been on a frolic of their own rather than simply acting within the course of their ordinary role as LLP members,” he said in the document.

“It is therefore fair, just and reasonable for the duty of care to be imposed and for them to answer for their acts of procuring breaches of contract.”

The court heard that Malaysian authorities had initially refused to let the band perform amid reports about Healy’s recent recovery from drug addiction.

But they agreed to allow the performance to take place after the band promised Healy would adhere to all guidelines and regulations, Mr Burns added.

“The band should be held liable as the loss was caused by their intentional misbehaviour breaching the express assurances that were given which gave rise to their personal duties of care and their responsibility for their own personal behaviour.”

The court hearing is expected to conclude on Wednesday.

In footage shared online, Healy could be seen telling the crowd that the band’s decision to appear in Malaysia had been a “mistake”.

“When we were booking shows, I wasn’t looking into it,” Healy said. “I do not see the point of inviting the 1975 to a country and then telling us who we can have sex with.

“Unfortunately you don’t get a set of loads of uplifting songs because I’m [expletive] furious,” the frontman continued. “And that’s not fair on you, because you’re not representative of your government. Because you’re young people, and I’m sure a lot of you are gay and progressive and cool.”

Healy and MacDonald then kissed as the band played the song I Like America & America Likes Me.

Soon after – just 30 minutes into the set – Healy and the band walked off stage, with the singer telling the audience: “Alright, we just got banned from Kuala Lumpur, see you later.”

After their Malaysian festival appearance was cut short, the band cancelled further concerts in Indonesia and Taiwan.

Healy’s protest stunt sparked backlash from some LGBT activists and allies in the country, with many calling it an act of “performative activism” that would make their lives even harder. Some said it displayed a “white saviour complex”.

In a statement after the show, a source close to the band said Healy had wanted to stand up for the LGBT community.

Several months later, Healy defended the move in a 10-minute speech delivered at a 1975 concert in Dallas, Texas.

Healy said the kiss was “not a stunt simply meant to provoke the government” but an “ongoing part of the 1975 stage show which had been performed many times prior”.

He described online anger over the performance as “liberal outrage”, and said criticism of the band for “remaining consistent” by performing its “pro-LGBT stage show” was puzzling.