Confidentiality in American Law and Halakhah
BY: Chaya Citrin.
The issue of confidentiality in American law and in Halakhah brings to the forefront a seeming clash between the freedom of religious expression and the simultaneous obligation to follow all American laws. This clash is largely reconcilable, however, since in most instances, an observer of Halakhah can adhere to this country’s laws governing confidentiality. This article surveys the basic concept of confidentiality as defined by both the American legal system and Halakhah. The survey takes into account issues such as freedom of speech, defamation, and professional confidentiality. This article then focuses on the application of these concepts to professional relationships that are subject to confidentiality, such as the physician-patient and clergy-penitent. This analysis illuminates similarities that the legal systems share regarding the divulging of confidences. At the same time, it brings to light fundamental differences that exist between the two systems in regard to spreading true, negative information and in regard to professional confidentiality.
The issue of confidentiality in Halakhah is founded upon a number of Torah laws. The Sefer Mitsvot Gadol (Semag), in its count of prohibitions, lists lashon ha-ra (gossip), rekhilut (tale-bearing), and motsi shem ra (defamation) together as one prohibition.[i] Rambam,[ii] however, distinguishes between the three and lists them as individual prohibitions.[iii] He asserts that lashon ha-ra consists of sharing true negative information about a person for no purpose, and rekhilut constitutes reporting back to a person the gossip that has been spoken about him or her. Motsi shem ra, on the other hand, is the relating of false, negative information about a person. The Hafets Hayyim develops the idea that the prohibition against lashon ha-ra, of divulging true negative information, is suspended in circumstances in which a constructive purpose (to’elet) may be served and in which the requirements of to’elet[iv] are met.[v]
In addition to the above three Torah prohibitions against derogatory speech, there exist two more prohibitions that are relevant to the issue of confidentiality in Halakhah. First, the Talmud[vi] discusses the prohibition against repeating information to others unless one has been expressly given permission to do so. The Talmud cites the verse, “God spoke to him from the tent of meeting, saying (lemor)”[vii] as a source for this principle. Rashi explains the Talmud’s statement to mean that the verse’s final word “lemor” is a contraction of the words “lo emor,” which mean “do not tell.” The contraction of the two words implies that one should not repeat information unless one is given permission to do so.[viii]
The practical application of this Talmudic passage is a matter of disagreement amongst post-Talmudic authorities. Magen Avraham[ix] quotes this Talmudic passage as halakhah le-ma’aseh (practical law) in the list of ethical laws that it adds on to Shulhan Arukh’s limited discussion of Hilkhot Massa u-Mattan (business laws). However, other opinions hold that this Talmudic passage refers to a preferred behavior – not to a halakhic requirement. Still others believe that this ruling is a halakhic mandate, in accordance with Magen Avraham, but that it only refers to information that is related quietly or in a private place, i.e., in circumstances that imply an expectation of confidentiality; this condition is inferred from the fact that the proof text refers to God speaking privately to Moshe in the Mishkan (tabernacle). Therefore, if one is told information in circumstances that do not entail confidentiality, one may share the information even without express permission, unless the information is of the sort that an ordinary person would want kept private.[x]
The final prohibition to play a role in determining the halakhot of confidentiality is the mitsvah of “lo ta’amod al dam re’ekha,” “do not stand by while your brother’s blood is being shed.”[xi] According to Rambam,[xii] this verse obligates one to save others not only from physical injury, but from monetary harm as well. Due to this mitsvah, one is obligated to relate information that may protect another person from possible harm.[xiii]
After considering the relevant halakhic sources concerning confidentiality, a survey of confidentiality in American law begins with the First Amendment’s protection of freedom of speech. The First Amendment does not protect defamatory speech, however. To constitute defamation, a statement “must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community.”[xiv] True statements, no matter how disparaging, are not grounds for a defamation suit.[xv] When deciding the outcome of a defamation suit, courts must make sure “that the judgment does not constitute a forbidden intrusion on the field of free expression” that is protected by the First Amendment.[xvi] Some statements, such as accusations of dishonesty, are “slanderous per se” and therefore are justification for a lawsuit even if the statements did not cause the plaintiff any damage.[xvii] For example, in Anderson v. Kammeier,[xviii] Anderson was awarded $1,000 in punitive damages despite the fact that Kammeier’s slander did not cause him any financial harm. The court ruled in favor of Anderson since Kammeier’s statements that Anderson “should not be trusted” and that he would “stab anyone in the back” were considered slanderous per se.
A fundamental difference exists between American law and Halakhah regarding publicizing true, negative information. By definition, lashon ha-ra and rekhilut consist of true, negative information. The First Amendment, in its protection of free expression, effectively defends one’s right to speak lashon ha-ra and rekhilut. Both legal systems, however, do not allow for the spreading of false, negative information about others, i.e., defamation, or motsi shem ra. According to the Hafets Hayyim, the Talmud’s prohibition against sharing information when one has not received express permission to do so applies only in circumstances that give rise to an expectation of confidentiality. Similarly, American law protects information that is divulged in the context of confidential relationships, as will be seen regarding professional-client and clergy-penitent relationships.
Both American law and Halakhah recognize exceptional situations in which the protections against certain forms of derogatory speech do not pertain. Under American law, some individuals, such as well-known criminals, are considered libel-proof; their character has already been tarnished so severely that defamatory statements cannot further damage their reputations.[xix] Similarly, Halakhah permits one to speak lashon ha-ra about an appikoros (heretic) and a “known transgressor.”[xx]
Although both legal systems allow some laxity regarding speaking about persons of ill repute, the respective dispensations are quite dissimilar. American law does not recognize defamation – the spreading of false, negative information – as injurious to persons who are libel-proof. Jewish law, however, only permits the spreading of true, negative information about an established appikoros or transgressor, and does not allow for defamation, motsi shem ra, even against such individuals. Additionally, the two legal systems have very different reasons for being less stringent in this regard. American law recognizes certain individuals as libel-proof due to the difficulty in causing further damage to their already tainted reputations. Jewish law, however, permits one to speak negatively about a known transgressor for the purpose of dissuading others from following his or her example. The concern motivating the Halakhah in this case is basically that of to’elet.[xxi]
American law is especially concerned with the protection of information shared within the professional-client relationship. In the article “Rabbinic Confidentiality: American Law and Jewish Law,” professor of law R. Alan Sokobin explains that “[t]he question of confidentiality between a professional and a client is one that has bedeviled the legal system and is not one that has absolute boundaries.”[xxii] Most breach of confidentiality lawsuits have taken place between physicians and patients, but the principles that are relevant to physician-patient confidentiality are “equivalent” regarding all professional confidential relationships.[xxiii] Breach of confidentiality is relevant in regard to professional relationships, because such relationships give rise to expectations of confidentiality. Similarly, in Jewish law, confidentiality is binding in circumstances in which the expectation of confidentiality exists. However, in Jewish law, the expectation of confidentiality is not limited to professional relationships; any private circumstances, even between laypersons, can create an obligation of confidentiality.[xxiv]
When, however, does American law allow a professional to breach his or her client’s trust and disclose confidential information? The lawsuit of Tarasoff v. Regents of the University of California[xxv] dealt with this issue. The case involved a wrongful death complaint filed against a psychologist who did not divulge a patient’s revelation that he planned to kill a woman who had turned down his romantic advances. The patient killed the woman, and her parents filed a complaint against the patient’s psychologist. The trial court rejected the wrongful death complaint due to a California statute.[xxvi] The California Supreme Court, however, held in favor of the victim’s parents, stating: “We recognize […] the consequent public importance of safeguarding the confidential character of psychotherapeutic communication. Against this interest, however, we must weigh the public interest in safety from violent assault.”[xxvii] The California Supreme Court ruled that the upholding of public safety is reasonable grounds for breach of professional confidentiality.[xxviii]
The Tarasoff ruling became precedent for later breach of confidentiality lawsuits. In Bellah v. Greenson,[xxix] parents filed a wrongful death claim against their daughter’s psychiatrist. Although the psychiatrist had been aware of the patient’s suicidal disposition, he did not inform her parents of it nor did he prevent the patient from taking a deadly overdose of pills. The court of appeals ruled in favor of the psychiatrist, employing a “narrow” interpretation of Tarasoff that disclosure of confidential information is only required in the case of potential harm to a third party. It did not establish the obligation of such disclosure in the case of potential personal harm or suicide.[xxx] Similarly, the California Supreme Court ruled in Nally v. Grace Community Church of the Valley[xxxi] that church counselors were not liable for failing to prevent the plaintiffs’ son’s suicide since an obligation to divulge confidential information only exists when a third-party may be harmed.[xxxii] In contrast, Jewish law would likely obligate one to disclose confidential information in order to prevent suicide or self-harm since suicide is prohibited by a Torah verse.[xxxiii] Preventing suicide or self-harm is a fulfillment of the mitsvah of “lo ta’amod.”
American law and Halakhah especially come into interaction in regard to rabbinic confidentiality. Information that is shared with one’s rabbi is considered confidential under the clergy-penitent privilege. The purpose of the privilege is “to prevent a clergyman from being compelled to testify in a legal proceeding about the matters confided in him by the penitent.”[xxxiv] The privilege was introduced in New York State in the early 19th century. All fifty states plus the District of Columbia have similar statutes on the books that protect information that is disclosed within the context of a clergy-penitent relationship.[xxxv]
Originally, the privilege was introduced to protect the confidentiality of confessions made by penitents to Catholic priests; now, the privilege applies to clergy of all faiths. This law assumes that members of the clergy are required by their respective religions not to reveal information told to them in confidence by “penitents.” This assumption is true of Halakhah in general, but it is not necessarily compatible with situations in which Halakhah obligates rabbis to divulge confidential information due to the duty of “lo ta’amod.” The First Amendment safeguards one’s right to the “free exercise of religion,” but this protection may not extend to protect clergy who divulge confidential information due to a religious obligation to do so.[xxxvi]
Although differences exist between the American and Jewish legal systems regarding confidentiality, for the most part, these differences do not create irreconcilable challenges for American Jews intent on adhering to both American and Jewish law. Jewish law views all negative, true information as confidential, unless revealing it can cause benefit. American law, however, regards negative, true information as non-confidential and permits the sharing of such information. In this sense, Jewish law is stricter regarding the divulging of information. In a different way, American law is stricter regarding the divulging of confidences in that it places protections on professional relationships, while Jewish law does not do so. Furthermore, American law allows for fewer exemptions for breaching confidentiality than Jewish law does. A study of confidentiality in American and Jewish law reveals both similarities and differences between the two as well as the possibility of generally adhering to both systems’ requirements.[xxxvii]
Chaya Citrin (SCW ’10) is a former Staff Writer for Kol Hamevaser and is currently a first-year student at the UCLA School of Law.
[i] Sefer Mitsvot Gadol, Mitsvot Lo Ta’aseh 9.
[ii] Rambam, Mishneh Torah, Hilkhot De’ot 7:1-7.
[iii] Michael Broyde, Nathan Diament, and Yona Reiss, “Confidentiality and Rabbinic Counseling – An Overview of Halakhic and Legal Issues,” April 21, 2009. Available at: http://www.jlaw.com/Articles/RabbinicCounseling1.html/, p. 2.
[iv] The following are the seven criteria of to’elet as presented by the Hafets Hayyim 1) one must know the information first hand; 2) one must be absolutely certain that the information is true; 3) the action in question must first reprove the offender; only if he or she does not reform his or her actions after being rebuked is one permitted to tell others; 4) one may not exaggerate at all; 5) one’s intentions must be to benefit (i.e. to prevent harm from) another person by relating the derogatory information; it is forbidden to gain satisfaction from speaking against another person or to speak against someone if one is motivated by personal animosity; 6) one may only divulge information if other means are unavailable; before resorting to derogatory information, one should try to employ a different method to bring about the positive results that one intends to cause; 7) one may not divulge the information if doing so will cause the offender to suffer greater harm than Halakhah permits. See R. Zelig Pliskin, Guard Your Tongue: Adapted from Chofetz Chaim (New York: Moriah Offset, 1975), pp. 116-118.
[v] Broyde, et al., p. 2.
[vi] Yoma 4b, with Rashi’s commentary.
[vii] Leviticus 1:1.
[viii] This is assuming that the prohibition of lashon ha-ra is distinct from the dictum presented in this passage. Several commentaries, such as She’iltot 28, challenge this assertion.
[ix] Magen Avraham to Shulhan Arukh, Orah Hayyim, siman 156.
[x] Hafets Hayyim, Hilkhot Lashon ha-Ra, Be’er Mayyim Hayyim 2:27.
[xi] Leviticus 19:16.
[xii] Sefer ha-Mitsvot, Mitsvot Lo Ta’aseh 297.
[xiii] Broyde, et al., p. 2.
[xiv] Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980), citing the Restatement (Second) of Torts §§ 558-559 (1977); William L. Prosser, Handbook of the Law of Torts, 4th ed. (St. Paul: West Publishing Co., 1971), § 111 at 739.
[xv] Stuempges, ibid.
[xvi] Buckley v. Little, 394 F. Supp. 918 (S.D.N.Y.1975).
[xvii] Church of Scientology of Minnesota v. Minnesota State Medical Association Foundation, 264 NW2d 152, 156 (Minn. 1978).
[xviii] Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977).
[xix] Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639 (2d Cir. 1975).
[xx] Pliskin, pp. 100-01.
[xxi] This is how it is presented in Hafets Hayyim, Hilkhot Shemirat ha-Lashon, ch. 10, although other commentaries accept this ruling without ascribing to the principle of to’elet.
[xxii] Alan M. Sokobin, “Rabbinic Confidentiality: American Law and Jewish Law,” University of Toledo Law Review 38 (2007): 1179-1197, at p. 1181.
[xxiv] Although the Talmud does not state this explicitly, as there is no indication that the Talmud’s obligation to maintain confidentiality is limited to professional contexts, it can be assumed that the obligation is universal.
[xxv] Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551, P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).
[xxvi] Cal. Gov’t Code § 820.2 (West 1995) that gives doctors “tort immunity.”
[xxvii] Tarasoff, 551 P.2d at 346.
[xxviii] Sokobin, p. 1181.
[xxix] Bellah v. Greenson, Cal. Rptr. 535 (Ct. App. 1978).
[xxx] Sokobin, p. 1182.
[xxxi] Nally v. Grace Community Church of the Valley, 763 P.2d 948 (Cal. 1988).
[xxxii] Sokobin, p. 1189.
[xxxiii] Genesis 9:5.
[xxxiv] Broyde, et al., p. 1.
[xxxvii] I would like to thank R. Kenneth Auman and Professor Adina Levine for helping me with this article.