Two cases highlight how a statutory tort of interference with privacy would fill a gap in the existing law

July 15, 2022 |

Two recent stories highlight the inadequate privacy protections we have in Australia and how technology is making this situation worse.  In  Former model Tziporah Malkah breaks down over nude photos  the Age reports that Tziporah Atarah Malkah, formerly known as Kate Fischer complained of her naked and hardly blurred image being televised without her consent.  The image was secretly filmed by a man she has been in a relationship with.  Her privacy was clearly breached but she had little civil recourse. 

In the second case, as reported by the ABC in Melbourne woman featured in viral TikTok video without consent says she feels ‘dehumanised’ and the Guardian in Melbourne woman ‘dehumanised’ by viral TikTok filmed without her consent  a woman, who gave her name as Maree, was used as a prop for a tik tok video by a Harrison Pawluk.  Harrison approached Maree who was minding her own business at a public shopping centre and asked her to hold a bunch of flowers while he put on his jacket. Then he wished her a good day and walked away, leaving her with the flowers.  She was visibly shocked by the approach and the conclusion.  Harrison had the exchange videotaped and posted it onto tik tok where it has had 57 million views to date.  He posted the video with the line “I hope this made her day better.”  It was a smug and cynical gesture with no shortage of dishonesty attached. It was done to get a post on tik tok, not make a person happy.  Maree was used from start to finish.  She wasn’t told she was being filmed and when she realised she was and asked the videographer lied and said no.  She never consented.  In Europe, especially France, she would have a legal claim to protect her privacy, even in a public place given these circumstances.  In Australia the common law and equity would not be of any assistance.  The privacy protections for Maree are ineffective.  All the more reason to have a statutory tort for interference with privacy.  It will be interesting to see what the Attorney General’s Department review will say.

The Age article provides:

Former model Tziporah Atarah Malkah, also known as Kate Fischer, broke down in court describing a humiliating naked video of her leaked to television networks by a man she knew.

The 48-year-old appeared in Sutherland Local Court on Thursday after she was found guilty of breaching an AVO order.

In May 2018, the ’90s star said she was sitting down for a pub lunch of fish and chips with friends when a large screen televised “me naked flapping my arms around looking like a lunatic,” Malkah said.

She said her naked body had hardly been blurred by the television stations airing the footage without her consent.

“Shock, betrayal, humiliation … how could this be happening? This can’t be real. How could this be legal?” she said.

“I was just a puddle of disbelief and feeling the world had turned upside down, it wasn’t a fair world, not a just world, a disgusting disgusting thing to happen.”

Two days earlier Malkah had taken an AVO out on the man, and the pair were in an argument when he secretly filmed her.

While the incident happened more than four years ago, it has taken a lasting toll on Malkah.

“When I walk into a shopping mall and I’m just getting bread and eggs and milk like a normal person, I feel so ashamed, I have my head down,” she said.

“Who’s thinking I’m crazy dangerous and unstable? I’m a laughingstock, not fit for a decent society.”

She tried to tell police about the incident for eight months, but she was laughed at and mocked, told she had no evidence and that it was “Chinese whispers,” despite the dissemination of the images on television, she said.

Eventually, she made a police statement at Ulladulla which she shared online in contravention of the AVO.

Malkah has worked in aged care, for a refuge, and most recently as a traffic controller.

“I’m not snobby, as long as I am working. I just got so bullied. The taunting, the sneering, it’s been a very lonely horrible feeling.”

She said there have been conversations about returning to television but that advertisers are conservative and she “doesn’t fit their wholesome brand”.

“Of course I want to go back and do what I’m good at, what I want to do, and what the punters want to see.”

She now lives “hand to mouth week to week,” and borrows money from family and friends.

And due to police checks and being unable to work with the elderly or children she has created an OnlyFans online account.

“People subscribe to watch me, sort of like my own little TV show.”

Magistrate Jennifer Atkinson found Malkah was a person of good character, had good prospects of rehabilitation and was unlikely to re-offend.

“The publication of material unclothed … I accept was incredibly distressing and it still clearly is still very distressing for you,” Atkinson said.

“This has been a very traumatic experience.”

Malkah was not criminally convicted and was sentenced to a two-year good behaviour bond.

Outside court Malkah said she felt mixed emotions.

“When (the magistrate) said to me ‘you know, I could put you in jail for two years’ … I was like I’m going to be another woman who gets dudded by the system.”

While she was relieved as she “didn’t pack for jail” she remained disappointed at the television networks.

“That has done a lot of damage to me … My mental health, friends have backed away from me, it’s been absolutely horrific.”

The ABC article regarding the Tik Tok episode provides:

A Melbourne woman says she feels like clickbait after she was filmed without her consent for a TikTok video that has now been viewed more than 57 million times.

But TikTok creator Harrison Pawluk’s team said the video was filmed legally and was “designed to spread love and compassion” and not “cause anyone concern”.

*Maree — who has withheld her surname to maintain her privacy — told ABC Radio Melbourne she was filmed in a public place receiving flowers from Mr Pawluk several weeks ago.

The video was posted on Mr Pawluk’s TikTok account with the caption “I hope this made her day better” and the hashtag “#wholesome”.

It has since gone viral on the social media app, collecting 57 million views and 10.9 million likes.

The comments on the video include, “when she started crying I couldn’t hold it back”, and “wow that was so beautiful I swear I would cry”. These comments have received more than 10,000 likes.

But Maree said she wanted to challenge the idea this was a random act of kindness.

“There’s a lot of these flower TikToks all over the internet,” she said.

“He interrupted my quiet time, filmed and uploaded a video without my consent, turning it into something it wasn’t, and I feel like he is making quite a lot of money through it.

‘I didn’t think much of it’

Maree said she had been having a coffee in a Melbourne shopping centre when a man approached her and asked her to hold a bouquet of flowers.

“I made a bit of chitchat about, ‘Who was this lucky person?'” she told Virginia Trioli on ABC Radio Melbourne.

“And then he said, ‘Someone very special’, put his backpack on and just sort of strode off.”

Maree then realised she was being filmed a few feet away from a group of people and asked whether they were filming, to which they responded, “No”. 

She then asked whether they wanted the flowers.

Later that evening, a friend contacted her partner and showed him the video of Maree that had been uploaded online.

“I thought, ‘Oh well, who watches these things’,” she said. “I didn’t think much of it.”

Viral and tabloid media

Maree later received more texts from people telling her the video had gone viral, and that there was an article written about her on a tabloid news site.

“The article said: ‘old woman, elderly woman, heartbreaking tale’.

“And they got this picture of me supposedly crying, but it was just a horrible expression.

“I feel like clickbait.”

The article said Mr Pawluk, who has three million followers, was performing “random acts of kindness”.

“These artificial things are not random acts of kindness,” Maree said.

“But I wasn’t given that opportunity.”

While it is legal to film someone in a public place, Maree issued a warning to others about the TikTok trend.

“I think other women, especially older women, should be aware that if it can happen to me, it can happen to anybody,” she said.

“I don’t do any Facebook, Instagram, TikTok — anything — and yet it happened to me.”

Harrison inspired by trip to LA

A statement provided by Mr Pawluk’s team said a recent trip to LA had inspired him to “concentrate on random acts of kindness after witnessing the extent of the poverty and homelessness in a city where that shouldn’t be the case”.

“He offers flowers and pays for complete strangers’ groceries, and while cynics may claim it’s for views, Harrison simply has a personal commitment to helping people feel more connected and trusting,” the statement said.

“Having said that, while he has only so far encountered gratitude, if someone is upset, then they should feel free to personally email him.

“He would not want something designed to spread love and compassion to cause anyone concern.”

 

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