Confidentiality in Jewish Law By Rabbi David Bassous

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Confidentiality in Jewish Law

There is a whole range of Jewish laws under the heading of lashon harah or gossip.

The Torah tells us in Leviticus 19:16:

"A tale bearer should not go amongst you."

This is the source for the prohibition of various kinds of gossip, of which revealing confidential information is included.

The rabbis divided the laws of gossip into four separate subdivisions.

1) Avak lashon harah - literally the dust of gossip.

2) Lashon harah - gossip.

3) Motseeh shem ra - slander.

4) Mekabel lashon harah - to accept and believe gossip or slander.

Avak Lashon Harah - literally the dust of gossip

A person sometimes may say something seemingly innocuous about a certain person with a sarcastic inflection or a wink or nod which may give the impression that the opposite is true. For example:

"Moshe is so generous!" This statement may be accepted at face value or may be construed depending on the expression on the face of the person uttering it or his tone of voice to mean the opposite, that Moshe is in fact very stingy!

If people wink at one another when someone walks into the room as if to say, "Here comes that idiot again!" this may be classified as avak lashon harah even though no words were uttered.

Even saying something good about someone in front of others who may reply with a depreciating comment about him or her falls into this category.

Lashon Harah - Gossip

Saying something true which is bad or derogatory about someone is lashon harah.

Sometimes one may remind someone that they are speaking lashon harah and their response is, "But it is true!" That is what makes it lashon harah.

Gossip can cause irreparable damage to someone's reputation. In addition, the Talmud notes (Erchin 15b) that the retelling of gossip can destroy friendships and cause social disruption.

Motseeh Shem Ra - Slander

Character assassination is one of the most terrible types of gossip. Telling evil stories about someone which are lies is one of the worst things a person can do. Slandering someone and ruining their reputation is tantamount, on a certain level, to killing them.

Mekabel Lashon Harah - to accept and believe gossip or slander

It is important to note that the prohibition against gossip includes listening to gossip (Pesachim 118a). To listen to and believe lashon hara is also prohibited as this encourages the speaker to talk and spread calumny. The obligation to prevent gossip belongs both to the person who speaks gossip and the person who listens to gossip.

Examples of Lashon Harah in the Torah

The Torah is replete with examples of righteous and evil individuals who transgressed this prohibition.

1. Sarah our matriarch spoke of Abraham's advanced age and his inability to have children.1

2. Joseph spread evil reports about his brothers.2

3. One of the classic cases of lashon hara in the Torah is that of Miriam the sister of Moses and Aaron. The Torah3 tells us that Miriam spoke badly to her brother Aaron about her brother Moses who was an extremely humble person. The Torah is not specific about what she said and this is a point of contention among the Biblical commentators. Ramban at the end of parashat Ki-Teze writes that even though it would be fitting to conceal the event of Miriam so as not to disgrace a righteous individual. The Almighty wanted to teach this story to our children so that the prohibition of lashon hara would become well known, for it is a great transgression and causes a lot of evil.

Despite the following mitigating factors Miriam was still punished to teach us this valuable lesson to guard our speech.

a) She was in a way responsible for the birth of Moses. According to the Midrash her parents had separated in reaction to Pharoah's decree ordering all male babies to be killed. She persuaded them to re-unite by saying that they in effect were also killing the females by stopping all procreation.

b) Miriam had risked her life to save Moses by standing by the helpless infant in the river to ensure his eventual rescue.

c) Miriam acted with good intentions. She had no desire to hurt Moses but to right a perceived wrong.

d) Miriam did not know that the Almighty had commanded Moses to separate from his wife. See Deuteronomy 5:7. "Go say to them return to your tents, but you Moses stay here with me. She had therefore transgressed unintentionally (shogeg).

e) She did not say anything derogatory about Moses although she implied that he wasn't so great.

f) She spoke to her own brother Aaron, not to an outsider.

Moses was extremely humble and was unaffected and bore no grudge, he even prayed for her to get better.

4. We even find a case in the Torah of lashon harah about an inanimate object. It was dealt with very harshly because it led to a breakdown of the people's belief in Divine providence. Moses sent the twelve spies to spy out Canaan ten of them returned with an evil report, demeaning the land in the eyes of the nation and leading to open rebellion and tragedy. A whole generation of men had to die and the Israelites were forced to spend an extra thirty eight years in the wilderness due to this lashon harah.4 The Talmud in Sotah 34b comments: That they search the land for us — R. Hiyya b. Abba said: The spies aimed at nothing else than discrediting the land of Israel.5

5. Rab the talmudic sage in Shabbat 566 attributed the eventual split in King David's kingdom during his grandson Rehoboam' rein to David believing slander about Mephiboshet grandson of King Saul having joined the rebellion against him.

6. The case of Doeg the Edomite in the time of King Saul and David is considered a classic account of the mortal dangers of lashon hara. Doeg the Edomite spoke lashon hara about the priests who had helped David when he was fleeing from King Saul. The priests were unaware that David was being pursued by King Saul and helped him as he was widely known as a hero. Because of Doeg's gossip a whole city of Priests was wiped out.7

7. Isaiah the prophet was killed by his own grandson Manashe. The Talmud in Yebamot 49b attributes this to his having slurred the Jews: [And this was his penalty] for having said, ‘And I dwell in the midst of a people of unclean lips’.8

There are many other serious prohibitions connected with speaking and listening to lashon harah. The classic being the mitzvah of loving ones friend as oneself. (Vayikra 9:18)

Rambam in Hilchot Deot Chapter 10:3 says:

There is a mitzvah to love every Jew as oneself… therefore a person should praise his friend and prevent any financial loss that may accrue to them just as one is careful of ones own money and ones own honor. A person who derives honor through his friend's disgrace has no portion in the world to come.

Rabbi Meir Kagan better known as The Hafetz Haim, in the first chapter of his magnum opus (after which he was called) lists seventeen negative commandments and fourteen positive commandments that a person could potentially transgress by engaging in gossip.

The Obligation to Warn & Listen to a Warning

On the other hand not speaking lashon hara in a situation where there is an obligation to warn others of potential harm is also a transgression. A person should not be a 'hassid shoteh' literally a crazy hassid and take this prohibition of not speaking lashon hara or not accepting a warning because of the prohibition of listening to lashon hara to the extreme.

A case in point is the tragic murder of Gedaliah ben Ahikam9 who was appointed to rule the southern kingdom of Judea by the Babylonians when they had captured it. A fellow Jew murdered Gedalia. Friends forewarned Gedaliah that his life was in danger but he disregarded all warning so as not to accept lashon hara. His murder resulted in the Babylonians destroying the first commonwealth and the mass exile to Babylon of those who had remained. This combined with the fact that Gedaliah was a very righteous individual is why the Fast of Gedaliah was instituted on the day after Rosh Hashanah.

The Talmud in Niddah 61a discusses the tragic murder and lays some of the blame on Gedaliah himself for not heeding any warnings.

One taught: That was the pit which Ishmael the son of Nethaniah had filled with slain bodies, as it is written, Now the pit wherein Ishmael cast all the dead bodies of the men whom he had slain by the hand of Gedaliah. But was it Gedaliah that killed them? Was it not in fact Ishmael that killed them? — But owing to the fact that he should have taken note of the advice of Yohanan the son of Kareah and did not do so Scripture regards him as though he had killed them.

Raba observed: As to slander, though one should not believe it one should nevertheless take note of it.

What is the biblical source for the proscription of not revealing confidential information?

a. Confidentiality is a product of not gossiping. When the Torah commands us not to gossip it is implying that a person is obliged to respect another person’s privacy.

The Talmud has an interesting discussion about judges who have just adjudicated a case (Sanhedrin 31a). The Rabbis ask:

From where do we know that when a judge goes out of court he should not say, "I was for acquittal while my colleagues were for conviction, but what should I do seeing that they were in the majority?" The Torah therefore says: "You shall not go as a talebearer among your people." (Leviticus 19:16), and further, "He that goes about talebearing reveals secrets." (Proverbs 11:13).

It is thus prohibited for judges to reveal the confidential information about discussions that take place behind closed doors. The prohibition against talebearing is interpreted to include revealing information which if it is the truth and is not slanderous or evil gossip at all. The Hebrew word for talebearer, rachil, literally refers to a merchant. Although most merchants or peddlers sell merchandise, some people peddle information and they are the ones about whom the Torah says: "He that goes about talebearing reveals secrets."

The Semag (Sefer Mitzvot Gadol) who enumerates and comments on the 613 biblical commandments, defines the word rachil in precept 9 as follows:

Who is a rachil? He who reveals to a third party information told to him by his friend in secret." He cites the above Talmudic discussion (Sanhedrin 31a) in support of his position. He implies that revealing confidences is a biblical prohibition.

In the Mishneh Torah (Deot 7:2), Rambam defines a talebearer as "one who carries reports and goes from one to another and says: 'so and so said this; I heard such and such about so and so;' even if it is true. Such a person destroys the world."

b. The Talmud in Yoma 4b asks:

How do we know that if someone says something to his neighbor, the latter is not allowed to repeat it unless the neighbor specifically tells him "Go and say it." From the verse, And the L-rd spoke to him from the tent of meeting saying (leymor) (Lev. 1: 1).

Rashi comments that the word leymor (to say or saying) means lo emor (do not say) unless one's neighbor gives his consent. The Maharsha (Rabbi Samuel Edels), in his Talmudic commentary asserts that the word leymor seems to be superfluous; it therefore teaches us that one is not allowed to reveal confidential information without permission.

c. The famous Sephardic biblical commentator Or Hachayim asks why there is repetition in the verses: "And the L-rd spoke to Moses saying; speak unto the children of Israel" (Exodus 25:1-2). Or Hachayim answers that G-d first spoke to Moses in confidence. In the second verse, G-d gave permission to Moses to reveal His words to the people.

d. There is a ban enacted by Rabenu Gershom10 of Mainz (960-1028) on reading another person's mail without their consent (Shiltei Giborim Shavuot, chapter 5; Be'er Hagolah Yoreh Deah 334).

Visual Privacy

To disrupt another person’s privacy is forbidden as well.

The Talmud (Baba Batra 2a) considers the ability for someone to look into his neighbor’s yard to be a form of injury known as ‘damage by sight’. This concept means that it is forbidden to be a peeping Tom, and look at another person during private moments. (Ramban, Baba Batra 59a, Even Haezel Laws of Neighbors 2:16). Damage by sight is considered a personal injury because of humiliation and loss of privacy it creates.

Because of damage caused by loss of privacy, in Jewish law a person can force his neighbor to share in the expenses of a fence between their two properties, so that both parties are ensured of their privacy (Shulhan Aruch Hoshen Mishpat 154:3). To snoop around another person’s property and photograph them while they are in bathing suits or from a helicopter from the air is a violation of their rights to privacy.

In which situation is a person allowed to reveal confidential information?

Notwithstanding the substantial rights of a person to privacy and confidentiality and the significant restrictions in Jewish law of spreading gossip, there are certain situations where it would be allowed, and even a mitzvah (obligation) to reveal secret information.

Rabbi Ovadia Yoseph in his responsa (Yehave Daat 5:60) discusses whether an eye doctor who found a person to be legally blind may inform the Department of Motor Vehicles, so that the person's driving license be revoked, or would the eye doctor be forbidden to divulge confidential information.

After defining what is considered lashon hara Rabbi Ovadia quotes from the responsa of Rabbi Yoseph Kolon (187) that a person is prohibited to speak lashon hara when his intention is to defame and disgrace the other party. However, if the intention is for some productive purpose or to prevent danger it is allowed to speak lashon hara.

The proof for this is from the Rambam in Chapter 1 of the Laws of a Murderer halachah 14:

Whoever is able to save another person's life and desists transgresses the commandment of: 'Don't stand idly by your neighbor's blood.' Therefore a person who observes another person drowning in the sea, or witnesses a mugging, and is able to save the victim, or he heard that others were plotting to hurt someone and he didn't warn the person transgresses this law.11

Therefore not only is the doctor allowed to reveal confidential information in order to prevent any future accidents it is an obligation on him to do so. Similarly in the case of a person who suffers from epileptic fits it is the doctor's responsibility to warn the department of motor vehicles to revoke his license.

The Talmud in Niddah 61a states that even though it is generally prohibited to accept lashon hara one may however take a warning and be suspicious.12

The Rambam in Sefer Hamitzvot13 goes further and declares that not only is a person obligated to relate gossip in order to save someone's life but is also obligated to relate gossip to save him from financial loss.

The Pithei Teshuva14 writes that many halachic authorities have emphasized the prohibition of speaking lashon hara but there is a worse transgression that is also very common: That a person does not divulge information in order to warn someone about a danger to life or of a financial loss. Similarly in the area of matchmaking it is obligatory to warn either party about the failings of the other. Divulging information in order to prevent any kind of loss to the other party is included in the positive command of returning a lost object.15

Rabbi Unterman16 discusses the case of an accountant who spotted irregularities in the books of a company and warned the controller of the company to no avail. Rabbi Unterman ruled that the accountant was allowed to make the matter public if there was no other way of saving the company from a loss, since this is what he was hired for in the first place. Rabbi Ovadia Yoseph goes even further and states that even if the accountant was not paid to audit the books but noticed that something underhand was going on he would have the obligation to inform the authorities in order to prevent a loss.

Rabbi Israel Meir Hacohen popularly known as the Hafetz Haim17 says that it is obligatory to warn someone about his or her potential mate's dark past or about a prospective employee's unreliability.

However Hafetz Haim requires five conditions to be fulfilled in order to allow the revealing of a secret or confidential information to save someone from physical or financial harm:

1. One must be absolutely certain of the potential harm and should not jump to hasty conclusions.

2. One may not exaggerate the information being revealed in any way.

3. The motivation to divulge the information must be altruistic and for the benefit of the person who may be otherwise harmed.

4. If one can prevent the potential harm in another way, without having to disclose confidential information, one should do so.

5. The danger should be averted without permanently damaging the person about whom one is revealing information.

Rabbi Mordechai Yaakov Breisch18 was asked by a physician whether or not he was obliged to tell a bride that her prospective groom suffers from incurable cancer and is not expected to live for more than a year or two. Rabbi Breisch answered that the doctor is obligated to reveal the information to the bride for two reasons:

1. Otherwise, the doctor violates the prohibition against standing idly by the blood of one's fellow man (Lev. 19:14).

2. If he fails to give the bride the appropriate information, the doctor also transgresses the prohibition against placing a stumbling block before a blind person (Lev. 19:14).

Rabbi Eliezer Waldenberg in his responsa Tzitz Eliezer Vol. 15 #81:2 among the questions asked were the following:

1. Would a physician be allowed to testify against his own patient based on confidential information that only he is privy to?

2. Is there a breach of confidentiality when medical students listen in at a patient’s bedside?

3. Must a physician tell the motor vehicle department about his patient who suffers from epileptic fits?

Rabbi Waldenberg answers that the doctor must testify in court if he is summoned.

He also states that student doctors must have the patient's permission before examining him or her. If the patient objects, the students should not do so. The presence of students may be beneficial to the patient as they may stimulate the physician to consider certain diagnostic tests or therapeutic options, which he may not have otherwise considered.

Finally, a physician is obligated to tell the authorities about his patient with epilepsy, who may cause harm to someone by driving.

Rabbi Moshe David Tendler,19 quoting his father-in-law Rabbi Moshe Feinstein, states that a disability, which may impact negatively on an individual's functioning as spouse or parent, must be revealed to a prospective spouse. Such disabilities include impairment of sexual functioning, household management, or care of children.

Is one allowed to discuss the private lives of politicians or celebrities?

To report on a politician's private dealings, if it sheds significant light on his character, may be acceptable. This is because knowledge of the politician's character helps voters make an informed decision at election time. However a celebrity's private life, is of no relevance to the public and should not be reported on without the celebrity's permission.

These rules strike a balance between the needs of the public, who need to be informed about matters of public concern and the individual's right to privacy.

Repentance for having spoken Lashon Hara

The Talmud Arachin 15b quotes a discussion whether repentance for those wishing to atone for this sin is possible and what it is.

R. Hama b. Hanina said, "What is the remedy for slanderers? If he is a scholar, let him engage in the Torah, as it is said: The healing for a tongue is the tree of life,20 and ‘tongue’ here means the evil tongue, as it is said: ‘Their tongue is a sharpened arrow’, and ‘tree [of life]’ means only the Torah, as it is said: It is a tree of life, to them that hold on to it.21 — But if he is an ignorant person, let him become humble, as it is said: But perverseness is a wound to the spirit."22

R. Aha b. R. Hanina said, "If he has slandered already, (and is a constant gossip - a baal lashon hara) there is no remedy for him. King David, in his holy spirit, has cut him off already, as it is said: May the Lord cut off all flattering lips, the tongue that speaks great [proud] things!23 Nevertheless, what shall be his remedy so that he may not come to [utter] evil speech? If he is a scholar, let him engage in the Torah, and if he is an ignorant person, let him humble himself, as it is said: ‘But perverseness therein is a wound to the spirit’."

Rambam24 follows this latter opinion.