To Tell or Not to Tell: Confidentiality vs. Disclosure in Jewish Law and Tradition (1)

Insight Israel

Vol. 5, No. 3

November ‏2004

I) Introduction

During the past few years, I have been confronted with the following real questions either via the media or as a posek (decisor of Jewish law):

Medical issues:

A therapist knows that his patient Reuven is suicidal or wants to kill Shimon – should he inform the authorities?

A doctor knows that Reuven has epilepsy or bad vision – should he tell the Bureau of Motor Vehicles?

The authorities know that Reuven is a pedophile just released from prison – should they inform the neighbors?

A doctor knows that Reuven, who is about to marry Sarah, suffers from epilepsy, infertility or mental illness – should he tell Sarah?

May the Israeli army give confidential medical records to a Bet Din regarding a husband involved in a divorce?

 Personal Issues:

An accountant knows that his boss is embezzling – should he tell the authorities?

A person knows confidential information and a court summons him to testify – should he?

Reuven discover that his friend Shimon – a rabbi – is having an affair with a non-Jew. Should he tell Shimon’s wife who is also his friend when this may result not only in divorce but in Shimon losing his job?

Media-Related Issues:

Should the media publish the name and story of

– a rabbi who is being investigated by a rabbinical organization for sexual impropriety but no conclusion has been reached?

– a rabbi who has been accused of sexually abusing teenagers but is not currently under any investigation?

– a deceased rabbi who had a history of womanizing?

– a politician who is under investigation by the police for criminal activity but has not been charged?

– a politician who has an affair with his secretary?

– a presidential candidate’s military record 30 years after the fact

– a government minister who has stacked his ministry with hundreds of political appointments?

– an actor who is gay or has an illegitimate child?

An Israeli politician or rabbi makes a speech to one hundred followers in which he says derogatory things about another party or about Arabs. Should the radio rebroadcast the clandestine tape of that speech dozens of times to hundreds of thousands of people?

The inherent tension in most of these questions is encapsulated in a famous verse in the Torah (Leviticus 19:16): “Do not go about as a talebearer among your people; do not stand idly by the blood of your fellow, I am the Lord”. As we shall see below, the first half of the verse commands us to be discreet and keep our mouths closed, while the second half commands us to reveal a confidence under certain circumstances.

II) Confidentiality

A) Talebearing and Lashon Hara

As I have explained elsewhere (see Golinkin, Death and Life), our Sages expressed their opposition to talebearing and lashon hara in many passages in rabbinic literature. A good summary of these laws can be found Maimonides’s Mishneh Torah (De’ot 7:1-3):

Whoever spies on another person violates a prohibition, as it is said: “Do not go about as a talebearer among your people” (Lev. 19:16)…

Who is a talebearer? One who carries reports, and goes about from one person to another and says: “so-and-so said this”, “such-and- such have I heard about so-and-so”. Even if it is true, the talebearer destroys the world.

There is a still graver offense which is included within this prohibition, namely lashon hara, the evil tongue. This means talking disparagingly of anyone, even though what one says is true… A person with an evil tongue is one, who, sitting in company, says: “That person did such-and-such”, “so-and-so’s ancestors were so-and-so”, “I have heard such-and-such about him” – and then proceeds to say disparaging things…

The Sages say: “There are three offenses for which one is punished in this world and forfeits his portion in the World to Come: idolatry, incest and murder, but the evil tongue is equal to all three put together…The Sages also said: “The evil tongue slays three people: the speaker, the listener, and the one spoken about; and the listener will be punished worse than the speaker.

B) It is forbidden to reveal secrets

Aside from the prohibitions of talebearing and lashon hara, there are sources which prohibit the disclosure of secrets or confidential information or which require the permission of the person in question before that information may be revealed. Proverbs 11:13 says, “A base fellow gives away secrets, but a trustworthy soul keeps a confidence”. The Mishnah (Sanhedrin 3:7) uses this verse, as well as Leviticus 19:16, to teach that judges are not permitted to reveal their deliberations after a verdict is reached and this ruling was codified by the Rif (ed. Vilna, fol. 9a) and by Maimonides (Sanhedrin 22:7).

The Talmud (Sanhedrin 31a) adds a story about a student who revealed a secret from the House of Study 22 years after the fact. Rav Ami threw him out of the House of Study, saying: “This is a revealer of secrets!” (2) This source was followed by Rabbi Eliyahu ben Hayyim of Constantinople (1530-1610). He ruled in his responsa (Ra’anah, No. 111) that if one of the communal leaders reveals the secret deliberations of the City Council, he is disqualified from serving.

The next source has the most direct bearing on our cases. We read in the Babylonian Talmud (Yoma 4b):

How do we know that when a person tells something to his friend, the latter may not repeat it until the person says to him “go and say”? As it is written (Leviticus 1:1): “And God spoke to [Moses] from the Tent of Meeting to say…”

This source was codified by Rabbi Moses of Coucy (France, ca. 1236) and by Rabbi Abraham Gumbiner (Poland, 1637-1683) (3) and it means that one may not reveal a confidence without the express permission of the confider.

C) Embarrassing Someone in Public is Akin to Murder

We have learned in the Mishnah (Avot 3:11) that a person who embarrasses his fellow in public “has no place in the World to Come”. Furthermore, we have learned in a famous Talmudic passage (Bava Metzia 58b): “A Tanna taught before Rav Nahman bar Yitzhak: he who embarrasses his fellow in public, is it as if he had spilled his blood”. Maimonides codified these dicta in two different places in the Mishneh Torah (De’ot 6:8 and Teshuvah 3:14).

Judging from the three sets of prohibitions described above, it would seem that it is absolutely forbidden to print a negative story about a politician or to reveal a secret about a friend or a patient. This leads us to the second half of Leviticus 19:16 cited above.

III)  Disclosure

A) “Do not stand idly by the blood of your fellow”

As we have seen, Maimonides bases his strict attitude towards talebearing on the first half of Leviticus 19:16. Nonetheless, he allows revealing a secret under certain circumstances, on the basis of the second half of that very same verse:

Whoever can save his fellow and does not, transgresses “do not stand idly by the blood of your fellow”. Therefore, if he sees his fellow drowning or robbers approaching him… and he can save him himself… or, if he heard that non-Jews or Jewish informers are plotting against his friend and setting him up and he did not tell his friend…and similar cases, he is transgressing what it says in the Torah “do not stand idly by the blood of your fellow” (Laws of Murder 1:14).

This passage was quoted and codified by the Tur and the Shulhan Arukh (Hoshen Mishpat 426:1). Furthermore, Maimonides said “and similar cases”, which comes to include cases similar to the ones cited by him.

In addition, Maimonides adds in his Sefer Hamitzvot (Negative Commandments, No. 297) that the commandment “do not stand idly by” applies to a person who sees his friend’s money in danger and he must prevent the loss by testifying in court (and see below).

These sources became the precedents for many modern rabbis who ruled that it is permissible to reveal or publicize a secret under certain circumstances in order to prevent harm or monetary loss to other people.

In the Hafetz Hayyim (Vilna, 1873), R. Yisrael Meir Hacohen established seven conditions for revealing to other people Reuven’s wrongdoing against Shimon (Hilkhot Lashon Hara 10:2 and cf. Hikhot Rekhilut  9:2):

1. That he saw the act himself or that the rumor was substantiated;
2. that he should not decide immediately that it was theft or the like;
3. that he should first rebuke the sinner in soft language in order that he should mend his ways;
4. that when he tells people, he should not exaggerate the magnitude of the sin;
5. that his intent in telling people is for the good;
6. that if he can find another way to do good without telling lashon hara, he should do so;
7. that he should not cause greater harm to the sinner by telling than if someone had testified against the sinner in court.

In his commentary Pithey Teshuvah to Orah Hayyim 156 (Vilna, 1875), Rabbi Yisrael Isser castigates those who avoid revealing secrets to their friends – which would save them from harm – because they are afraid of lashon hara. He gives a few examples similar to those of Maimonides and adds “so too regarding matchmaking, when the groom is a bad person and a crook or he is sickly and he wants to get married, [the bride must be told]”. R. Yisrael Isser was one of the first to allow one to reveal to a bride that her future husband is a crook or sickly.

In more recent times, many rabbis ruled (see the Bibliography, Section II) that a doctor should reveal a medical condition to a prospective bride or groom to prevent them from marrying a person who is sterile or who is suffering from a serious or fatal disease.

Rabbi Ovadiah Yosef and other rabbis ruled that a doctor must inform the Motor Vehicle Bureau that a patient has poor vision or epilepsy in order to prevent the patient from killing innocent drivers or pedestrians.

Rabbi Kushilevitz was asked about a Jewish accountant who discovers that Reuven, the head of his Jewish organization, is embezzling and “cooking the books”, and who warns Reuven that he will publicize the matter. He ruled that the accountant is allowed to publicize the matter and embarrass Reuven despite the prohibition of “embarrassing one’s fellow” if there is no other way to salvage the money, because the accountant is a shomer sakhar (paid trustee) of the organization.

B) “Do not place a stumbling block before the blind”

The Torah says:  “Do not place a stumbling block before the blind” (Lev. 19:14), which the Sages interpreted in a broad fashion. Rabbi Mordechai Ya’acov Breisch adds on the basis of Mishneh Lamelekh to Maimonides (Kilayim 1:6) that if you do not reveal Reuven’s contagious or serious disease to his prospective bride you are “placing a stumbling block before the blind”.

C) Returning Lost Property

The Torah requires us to return the lost property of our fellow man (Deut. 22: 1-3). The Sages (Sanhedrin 73a) learned from this verse that you must “return a person’s lost body” i.e. prevent him from drowning in a river. Rabbi Yisrael Isser and Rabbi Eliezer Waldenberg say that saving a person from marrying a sick person is akin to returning a person’s lost property or body.

D) The Mitzvah of Testifying

According to the Sifra (Kedoshim 4:8, ed. Weiss, fol. 89a), Maimonides (Edut 1:1), the Shulhan Arukh (Hoshen Mishpat 28:1) and Sefer Hahinuch (No. 244) it is a mitzvah to testify in a Jewish court of law. Therefore, if a Jew knows crucial testimony, he may not remain silent and he must testify in court.

E) A doctor may reveal a secret even if he promised not to tell

Rabbi Eliezer Waldenberg (Vol. 16, No. 4) goes one step further and says that a doctor is required to reveal a medical secret to the future husband or wife even if he promised not to tell. He bases himself on Rabbi Moshe Isserles who ruled (Yoreh Deah 239:7) that if Reuven swore not to reveal a secret to his friend which would save him from losing money, it does not take effect; how much the more-so should we ignore a promise to keep a secret if we can spare a future spouse pain and anguish.

IV) Practical Applications

Now we can return to the list of questions at the beginning of this article. Some of them are clearly forbidden for the three reasons listed above. For example, it is forbidden to publish gossip about a movie star or to reveal a politician’s affair with his intern or secretary. These stories seriously harm the person or people in question and do not save others from harm.

Some of them are clearly permissible or even required because of “you shall not stand idly by the blood of your fellow” and the other reasons cited. A doctor who knows that a patient is suicidal must reveal that information. A rabbi who knows that a groom has a fatal disease must tell the bride. An accountant who knows that his boss is embezzling and whose warnings have been ignored, must turn to the authorities. (4)

But, as the Hafetz Hayyim warned, we should not rush to print an accusation. If a rabbi is being investigated by a rabbinical organization for sexual impropriety, it is character assassination to publish prematurely. What if he is absolved? His reputation will have been ruined for naught. On the other hand, if a Jewish professional is accused by many of wrongdoing and his/her organization refuses to investigate, the newspaper may need to publish the charges just to force an investigation.

I would like to conclude with a very good suggestion as to how to decide when to publish and when to keep silent regarding the behavior of a politician. Rabbi Yitzchok Breitowitz quotes Rabbi Joseph Albo (Spain, 15^th century), who asked as follows: Why did God punish King Saul (I Samuel 15) for allowing Agag the King of Amalek to live by taking away his kingship, whereas King David, who took Batsheva, another man’s wife, and sent her husband Uriah to certain death in battle, was spared (2 Samuel 11-12)?! Why the double standard? (5)

We will give one of Rabbi Albo’s answers: Saul’s offense was political; David’s was personal. Killing the Amalekites, who were a threat to Israel’s survival, was Saul’s responsibility as king. By contrast, David’s sin with Batsheva, although awful, had no impact on his ability to govern. In short, personal moral failures do not necessarily disqualify one from political leadership; misfeasance in the conduct of office does.

If a government minister gives out hundreds of civil service jobs to his political cronies, that “secret” should be revealed and thoroughly investigated. But if the President of the United States has an affair, that is absolutely none of our business.

Notes

1. All rabbis mentioned in this article without a source reference are listed in the Bibliography at the end.
2. It should be noted that the number 22 is a round number in rabbinic literature. See Yeruham Fishel Ber, Divrey Meshulam, Franfurt am Main, 1926, pp. 45-48, who cites 16 examples of this phenomenon.
3. Semag, Negative Commandments, No. 9; Magen Avraham to Orah Hayyim 156, middle of subparagraph 2.
4. There are, of course, gray areas between the two poles, which cannot be dealt with in an introductory article such as this.
5. Sefer Ha’ikkarim, Volume 4, Part 1, Chapter 26, parag. 8 ff, ed. Husik, Philadelphia, 1930, pp. 242ff.

Confidentiality vs. Disclosure – A Bibliography

I) General

1) R. Wayne Allen, “Employee Evaluations and the Protection of Privacy”, Update 15 (2004), pp. 9-14

2) R. Michael Broyde, “The Practice of Law According to Halacha”, Journal of Halacha and Contemporary Society 20 (Fall 1990), pp. 17-19

3) R. Alfred Cohen, “Privacy: A Jewish Perspective”, Journal of Halacha and Contemporary Society 1/1 (Spring 1981), pp. 53-102

4) R. Alfred S. Cohen, “On Maintaining a Professional Confidence”, Journal of Halacha and Contemporary Society 7 (Spring 1984), pp. 73-87

5) Entziklopedia Talmudit, s.v. Hezek R’iyah, Vol. 8, cols. 659-702

6) R. David Golinkin, “ A Responsum Regarding the Right to Privacy”, Conservative Judaism 48/3 (Spring 1996), pp. 10-13

7) R. David Golinkin, “Death and Life are in the Hand of the Tongue”, Insight Israel, Vol. 4, No. 1 (September 2003), www.schechter.edu

8) R. Yisrael Meir Hacohen, Hafetz Hayyim, Vilna, 1873 and reprints, Hilkhot Lashon Hara 10:2 and Hilkhot Rekhilut 9:2.

9) R. Yisrael Isser, Pithey Teshuvah to Orah Hayyim, Vilna, 1875, parag. 156 (quoted by Rabbi Ovadiah Yosef and Rabbi Eliezer Waldenberg)

10) R. Shemuel Kushilevitz, Netivot Shemuel, Volume 1, Netiv 9 (quoted by R. Isser Yehudah Unterman, Hatorah Vehamedinah, Vol. 9 (5718), p. 23)

11) R. Norman Lamm, “The Fourth Amendment and its Equivalent in the Halachah”, Judaism 16/3 (Summer 1967), pp. 300-312

12) Nahum Rakover, Hahagana al Tzinat Haperat (Privacy), Jerusalem, 1970, 18 pp.

13) Dan Shnitt, Privacy, Confidentiality and the Right to Know in Social Work, Jerusalem, 2001 (Hebrew)

14) R. Elie Spitz, Jewish and American Law on the Cutting Edge of Privacy: Computers in the Business Sector, University Papers VI:1, University of Judaism, October 1986, 16 pp.

II) Medical

1) R. J. David Bleich, “Professional Secrecy”, Contemporary Halakhic Problems, Vol. 2, New York, 1983, pp. 74-80

2) R. Mordechai Ya’acov Breisch, Helkat Ya’akov, Vol. 3, No. 136 = second edition, Tel Aviv, 5752, Vol. 3, No. 79

3) Piskey Din Rabaniyim Ezoriyim, Vol. 5, p. 153 (quoted by Rabbi Ovadiah Yosef)

4) R. Baruch Rakover, “May a Doctor Testify Against a Patient Without the Latter’s Consent?”, Noam 2 (5719), pp. 188-191

5) R. Shiloh Refael, Assia, Vol. 3, Jerusalem, 1983, pp. 332-335

6) Fred Rosner, “Medical Confidentiality in Judaism”, Journal of Halacha and Contemporary Society 33 (Spring 1997), pp. 5-15

7) R. Paul Schrell Fox, “Revealing the Identity of a Pedophile”, Final Paper, The Schechter Institute, 5763, 29 pp. (unpublished)

8) R. Yitzhak Silberstein, Emek Halakhah Assia, Jerusalem, 1986, pp. 149-157

9) Avraham Steinberg, Assia, Vol. 3, Jerusalem, 1983, p. 326-331

10) Avraham Steinberg, Entziklopedia Hilkhatit Refuit, s.v. Sodiyut Refuit, Vol. 4, Jerusalem, 1994, cols. 613-642

11) R. Eliezer Waldenberg, Tzitz Eliezer, Vol. 13, Nos. 81, 104; Vol. 15, No. 13; Vol. 16, No. 4

12) R. Ovadiah Yosef, Yehave Da’at, Vol. 4, Jerusalem, 5741, No. 60

III) Rabbinic

1) R. J. David Bleich, “Rabbinic Confidentiality” Tradition 33/3 (Spring 1999), pp. 54-87

2) R. Stanley Boylan, “A Rabbi’s Obligation of Confidentiality” etc., Jewish Law Report, Touro College, May 2002, pp. 5-14

3) Alan Mayor Sokobin, “Rabbinic Confidentiality” Halakhah 7/1 (Autumn-Winter 1999), pp. 1-9

IV) The Media

1) R. Yitzchok Breitowitz, “Monica and the Prez: What Jewish Law Says”, Moment 23/5 (October 1998), pp. 62-63, 66-67

2) Lashon Limmud, 1998, Section IV, “Standards for Media Behavior”

3) Tzvi Ben Gedalyahu, “Stop the Senseless Hatred”, The Jerusalem Post, July 27, 2004, p. 15

4) R. Berel Wein, “The Right to Know vs. a Positive Society”, The Jerusalem Post, January 14, 2000, p. B9

All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.