Sarah Harte: It's not just a Tiktok moment. It's about consent and the right to dignity
Harrison Pawluk orchestrated a scenario where he handed flowers to a then unwitting woman, Maree. All the while, she was being filmed for the 22-year-old social media influencer's Tiktok stream.
You probably know that the erosion of our civil liberties is rooted in Silicon Valley and that social media networks from Facebook to TikTok have become a treasure trove for intelligence operatives. To paraphrase Lauren, the surly schoolgirl character from the Catherine Tate show, “are you bovvered?”
Last week, a 22-year-old social media creator was forced to apologise to an older woman for gifting her flowers in a ‘random act of kindness’ and uploading a video of the gesture to Tiktok without her consent where it went viral and has now been viewed 64m times.
In June, ‘Maree’ was having a quiet cup of coffee in the food court of a Melbourne supermarket when she was approached by Harrison Pawluk and handed a bunch of flowers which he asked her to hold, while he put on his jacket.
“Have a lovely day,” he said, before walking away leaving a bemused Maree clutching the flowers.
The entire episode was filmed by Pawluk’s friend.
Although, when asked by Maree if he was filming her, he said "no".
Pawluk said that she was “really grateful and just so happy and I know that’s just something she’s really going to remember for the rest of her life”.
He was right on one score. She will remember it.
Her expression of bemusement was wrongly interpreted by Pawluk and others as sadness. When a friend shared the uploaded video with her, she said she “didn’t think much of it".
Later, reading media reports in which the video featured, and which described her as an “elderly woman” with a “heartbreaking tale” Maree said she felt “dehumanised” and like “clickbait”.
"There I was, this ‘pathetic old woman’, drinking her coffee, out of a cardboard cup," she said.
"I feel he is making quite a lot of money through it.”
Pawluk’s Tiktok and YouTube videos have been reported as making him at least $10,000 each month through brand partnerships and sponsored posts. Pawluk, known as @lifeofharrison, has over 3m followers on social media and says, that he was inspired by a trip to LA where he witnessed homelessness.
“I was recently inspired to change the nature of my content and use my platform to do some good and spread some kindness,” he said.
Maree has said that she didn’t want the flowers, which she disliked, nor did she want to have to carry them home on the tram.
Last Sunday, Pawluk appeared on Australian television with a message for Maree. He would like to buy her flowers to her taste, a cup of coffee, and to apologise in person. He will continue performing his 'acts of kindness'. The video will not be taken down.
Maree has declined to give her surname to the media, wanting to protect her privacy.
Privacy — or what US judge Louis Brandeis famously called in 1890 “the right to be let alone” — remains both contentious and ever more pertinent in contemporary society where technologies yield complex social/technical dilemmas.
As one commentator said, “at the heart of internet culture is a force that wants to find out everything about you”.
Leaving aside the moral quality of this 'guerrilla act of kindness' [my term] what practical remedy does Maree have? Across Australia, laws vary when it comes to videoing people without their consent.
But what if Maree was your mother, or grandmother — or even you?
Law is a slow-moving beast that invariably lags behind technology so case law in this area is underdeveloped.
If Maree was a public figure or famous, it would change things as the issue of publishing in the public interest could arise. But Irish, European, and UK law shows a lack of clarity as to the contours of the privacy right when it comes to an ordinary member of the public being photographed or videoed simply going about their business, and the degree to which they can prevent their image from being published to a wider audience.
Under the common law, generally, in public, you do not have a reasonable expectation of privacy and so you can be photographed or videoed. However, the right to take the photo or video is different from the right to publish it to an audience in the news media or on social media.
If Maree took a case in Ireland, her case would need to be grounded in a claim of privacy/harassment or data protection.
One concept that could arise in a legal case would be whether the extensive publicity of her image could be said to be “objectively humiliating or distressful”, as opposed to ‘subjectively’ to her.
But this concept isn’t straightforward because while the viral video garnered 11m likes, others have viewed Pawluk’s act as both performative and exploitative.
Maree could rely on her constitutional right to privacy — although Harrison Pawluk would have an equal constitutional right to freedom of expression, and it is uncertain which right would prevail.
Practically, we can assume Maree, and most people in her situation, wouldn’t have either the resources or the desire to bring an expensive legal case.
Arguably, Maree could look to data protection legislation or her right to private life under our European Convention on Human Rights.
In theory, Maree could negotiate with Tiktok to have the video taken down, but she would have to argue that it was harmful to her or had breached Tiktok’s terms of use.
A scan of Tiktok’s community guidelines on harassment and bullying makes it seem unlikely that this would work.
The Online Safety and Media Regulation Bill 2022, currently on its second stage, might be worth a look provided it introduces an individual complaints mechanism as it prohibits harmful content which includes “online content by which a person bullies or humiliates another person”.
Each generation has different priorities.
For some younger influencers, life can be said to be a constant, often lucrative, performance where it’s not creepy to video somebody like Maree without her consent.
For other digital natives, a new awareness of privacy may be developing. But we can’t rely on social norms to protect our right to privacy.
Ethical standards are no use unless they have sharp edges in law. Though you may disagree with drink driving or driving too fast in a built-up area, you’re more likely to do these things without laws to proscribe these actions.
We live in a world where every owner of a smartphone is a potential photographer/videographer. New glasses with built-in cameras, and microphones allow the wearer to capture photos and video. Widespread surveillance has had a normalising effect and what George Eliot called ‘the unmapped country within us’ is shrinking.
This brings us perhaps to the real issue which is not simply Pawluk’s skewed notion of kindness but how Big Tech is monetising our privacy as a valuable commodity, thereby eroding it, and whether we should just cave in and adopt a form of nihilistic acceptance.
Arguably, what is at stake in Maree’s case is the right to dignity.
There is little consensus as to what the enigmatic concept of human dignity actually demands of lawmakers.
Maybe a case could be made for setting up a 'privacy protection commission', like the Workplace Relations Commission, so an ordinary person could bring a complaint about a breach of privacy and dignity without incurring legal costs.
In the meantime, it seems fitting to give the last word to Maree who has said that, “it’s the patronising assumption that … older women will be thrilled by some random stranger giving them flowers.”
