When did it become OK to film strangers in public?

2023-08-02 23:58

Imagine yourself in Times Square, New York. You're on a trip with your sister. Flashing

When did it become OK to film strangers in public?

Imagine yourself in Times Square, New York. You're on a trip with your sister. Flashing billboards, cart vendors, and street performers seek your attention. A member of a nearby dance troupe breaks formation to approach you, touching your shoulder and requesting a high five. Feeling uncomfortable, you refuse, rubbing your shoulder. Then, you start to cry.

You don’t know it at this moment, but you're being recorded. Someone has their phone out, capturing the whole interaction without saying a word. This stranger then uploads it to TikTok, where it goes viral with over 400,000 views before it's taken down. You’re mocked mercilessly in the comments for your reaction. Some accuse you of being racist: you are white, and the person who asked for the high five is Black. On TikTok, you are no longer you. Instead, you’ve become a search term: "girl crying in Times Square."

With the rise of social media and smartphones, videos of people’s real-time reactions to situations in public places have become synonymous with online platforms; easily shared and normalised as viral content. Videos like the aforementioned Times Square clip trend at speed on platforms like TikTok, YouTube, Instagram, and X (formerly known as Twitter), prompting not only likes and views, but harassment, discourse, and invasive sleuthing of the videos' often unaware subjects, regardless of the original poster's intent.

"On TikTok, you are no longer you. Instead, you’ve become a search term: 'girl crying in Times Square.'"

Dealing with humiliating and often devastating consequences after being filmed in public without your consent raises questions about the ethics of these types of posts. Where do we draw the line between public interest and public shaming? And when did we become so desensitised to videos of strangers being filmed in public without their consent?

Facing harassment and vigorous online abuse, the sister of "girl crying in Times Square" decided to post a two-part response to the video on TikTok, explaining her sister is autistic and that their intense reaction to the stranger’s touch was due to contamination OCD. She also confirmed that they had no idea they were being filmed at the time. This video has 4.5 million views to date.

As we’ve progressed towards a more instantly reactive world, with a constant need to post and share every moment of our lives made easier with smartphones and social apps, there is a reflex to record each other in moments like these. And the need to share those recordings for likes and engagement often outpaces concerns about consent and privacy.

Basically, strangers should not be filmed without their consent.

According to clinical psychologist and public policy lawyer Dr. Lisa Strohman, strangers who are being filmed in public have a reasonable expectation of privacy, and filming them without their consent can infringe upon their right to control their own image. Basically, strangers should not be filmed without their consent. According to the European Convention on Human Rights and the Human Rights Act of 1998 — an international human rights treaty — everybody has a right to respect for their private and family life, their home and their correspondence.

When is it justified to film strangers?

There are, of course, exceptions to this rule of thumb. According to the EFF, if you’re filming law enforcement, it is well within your rights to do so and may even be considered a safety tool in the face of police brutality. The role of bystander videos was instrumental in prosecuting the murder of George Floyd. Darnella Frazier’s video of Minneapolis Police officer Derek Chauvin pressing his knee on Floyd’s neck for almost 10 minutes was a vital piece of evidence in the prosecution's case, as well as her personal testimony, leading to Chauvin being charged with Floyd's murder and sentenced to 22.5 years in prison.

While this general rule that you are well within your rights to record law enforcement applies globally, the EFF has a very handy guide for what to do in such a situation in America. According to the EFF, using our phones to record on-duty police officers is a very powerful way to expose police misconduct. "You have a First Amendment right to record the police. Federal courts and the Justice Department have recognized the right of individuals to record the police. Although the Supreme Court has not squarely ruled on the issue, there is a long line of First Amendment case law from the high court that supports the right to record the police," says the EFF. "The First Circuit has held that ‘citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment,'" they add.

Content creators, particularly those who monetize their videos of strangers, have a history of invoking these nuances in order to justify their behaviour as purportedly serving the public good. Around 2014 to 2016, when ‘prank’ content was extremely popular on YouTube, creators would justify reprehensible behaviour in viral content by saying they were creating a "social experiment." Meanwhile, TikTok has spawned a mini-generation of #kindness influencers who film themselves performing "random acts of kindness" to strangers, regardless of whether they consent to being filmed. According to Statista, entertainment is the most popular category on the app worldwide, with #pranks amassing over 79 billion views.

When Australian TikTok creator Harrison Pawluk filmed himself spontaneously handing a bouquet of flowers to a woman named Maree, who was sitting alone at a table in a Melbourne shopping centre, it seemed like a perfectly normal random act of kindness. But after the video clocked up over 50 million views, Maree told ABC Radio Melbourne that she felt incredibly dehumanised by the video.

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

"He interrupted my quiet time, filmed and uploaded a video without my consent, turning it into something it wasn’t…I feel he is making quite a lot of money through it," she said in an interview. Maree said she was never given the opportunity to decide if she even wanted to accept the flowers, adding she later felt "like clickbait" for how commenters described her as a "heartbreaking tale."

Pawluk eventually apologised amid all the backlash, but also doubled down and said that he will continue performing these "acts of kindness". The problem here is that when Harrison filmed Maree for a social experiment without her knowledge but in view of the internet, he disregarded her right to personal privacy, even in public, explains psychologist Lauren Cook.

Another similar example of this was when someone filmed an elderly woman walking out of her screening of Barbie on her own. All the comments under that TikTok focused on how sad it is that this woman has had to go watch this film on her own. But, it's not possible to know for sure that she was on her own. Secondly, there's nothing sad about doing solo activities. And thirdly, filming this completely takes away her autonomy and privacy, making her subject to internet fodder and scrutiny without her knowledge or consent, much like the case of Maree.

"When we are filming people to 'test out' their reactions, whether it's to prank them or witness a social experiment, we are disrespecting body autonomy and safety in the world,"says Cook. Consent should be required before filming a stranger minding their own business. "When this is lacking, we're seeing folks become increasingly on edge."

The popularity of 'prank' and 'cringe' content

The format of filming or talking to random strangers in public is not new. TV employs it quite frequently, giving birth to shows like Billy on the Street and Impractical Jokers, the latter of which has over a million people tuning in for each episode. Speaking about the format of making Billy on the Street with Vulture, host Billy Eichner explained that the show does not precast its "real people'' and that they film for hours on end in order to get the cut we see on TV: Eichner sprinting down the streets of Manhattan, sometimes joined by a celebrity, accosting passersby with quick-fire questions they're never quite ready for.

We’ve had years of heavily monetised YouTube prank channels like Filthy Frank and Just For Laughs Gags. Production costs are generally low meaning profit can be high, meaning a significant solid revenue stream for social media platforms and creators — but nothing for the people filmed.

Videos of TikTok "fails" and "cringe" compilations can generate billions of views online. On TikTok, the hashtag "cringe" has over 43 billion views, and "fails" has over 37 billion. These hashtags are filled with videos of people filming strangers trying and either failing to do certain everyday tasks or generating a very cringe-y reaction to any given situation.

Platforms like YouTube and TikTok do little to discourage posting videos filmed in public without consent — there's a bounty of engagement and revenue in sight. TikTok’s algorithm is designed to overfill a user’s feed with content they have interacted with, explains Joe Karasin, founder of digital marketing company Karasin PPC, and if you engage with one video of this kind, you’ll see loads more.

"The moment you engage with a video like this, you can expect to see more of the same, and TikTok will begin to share the content with more profiles. Because this type of content is already popular, it essentially succumbs to the 'pile-on' effect of getting immediate exposure," says Karasin.

TikTok’s policy on posting any video on its platform is very straightforward: "As a TikTok user, you are responsible for the content you post," reads the platform's Intellectual Property Policy. For a video to be monetised, there are various criteria that need to be met. But for every 1,000 views, a creator can earn $2-4.

TikTok says it respects the intellectual property rights of others, and we expect you to do the same. TikTok’s Terms of Service and Community Guidelines do not allow posting, sharing, or sending any content that violates or infringes someone else’s copyrights, trademarks or other intellectual property rights.

What's the difference between filming a stranger in public and paparazzi?

Online culture has changed the definition of what it means to be a public versus private citizen. The lines have been blurred to the point that people have started to apply the standards of a celebrity to random people who do not have the resources to combat or prepare for the toll that comes with it.

The existence of paparazzi in and of itself poses a slew of legal and ethical problems. But the law has time and again ruled in favour of the celebrity or public figure when a paparazzi’s lens went too far.

Online culture has changed the definition of what it means to be a public versus private citizen.

For example, in the 2012 case of Catherine, the now-Princess of Wales, when a topless paparazzi picture of her appeared in a French magazine. It was a picture taken with a long lens camera from a significant distance, and it was during a vacation the royals had taken in a private villa. The magazine argued that the picture is in public interest as they are the future heirs to the throne. But the French courts ruled in favour of the royals, stating that there is a distinction between what the public is interested in and what is actually public interest.

There is also the fact that we have a human right to privacy, whether you’re a celebrity or not. According to the Human Rights Act, this basically means that you have the right to live your life privately without media or government interference.

The whole point of a ‘celebrity’ is that the person is a public, well known figure, and even they are allowed to have a "reasonable expectation of privacy," even if they are public figures (as established in the 2013 case of RocknRoll v News Group Newspapers Ltd, which stated that Edward RocknRoll’s semi naked pictures taken at a party and posted on Facebook are not to be printed by The Sun as he, even as a public figure, has a reasonable expectation of privacy).

"Social media has turned many of us into either voyeurs, exhibitionists, or both," argues ethics expert Yonason Goldson, "It makes us seek recognition anyway we can get it, often at the expense of others."

"It is infinitely easier to write something unkind and post it, ostensibly without the targeted person seeing it, than to say something unkind directly to someone’s face," adds Dr. Jennifer Weber, director of behavioural health at PM Pediatric Care.

So, what can we do about this?

Filming strangers for content has become so normalised, but there are a few strategies that people can employ in order to avoid this behaviour.

Children and teens should show potential posts to a parent or other trusted adult before publishing to make sure they develop a good internal barometer of what is okay and what is potentially problematic, says Weber.

But at the end of the day, it is the responsibility of social media platforms to ensure that posts like this don’t gain the kind of traction they do. Yes, controversy and "cringe" sells, but at the same time it also has some severe real world consequences that can completely upend a stranger’s life.

Weber also adds that if you’re posting a video with a stranger in it, it is best to not post the video at all unless you have that person’s express consent.

"Everyone can benefit by waiting before posting. Many people assume others will instinctively know their intention and interpret the post exactly as they mean it to be conveyed, but unfortunately that is not true," she says.

A good rule of thumb is to create the post, take a moment to gain a little perspective (how will people view me when they see this?), Weber adds.

The act of filming someone without their consent and posting it online is not only invasive but can also be extremely harmful, no matter the intention. While valid in certain situations, it is important to take into consideration the issue of public interest (as is the case in filming law enforcement) versus possible harm. In most cases, filming people in public without their knowledge only does more harm than good, and makes a mockery out of innocent people whose lives can be upended by a simple social media post.

Slowing the whole process down and being more mindful and conscientious about your posts is a quick way to ensure you respect yourself and others more. No one will know you took an extra 15 minutes to consider before hitting post but you can be assured that you are taking an extra step to avoid potential long-lasting consequences in the future.