In Praise of Privacy

Although the Torah itself never specifies the reason why a person or their property would be afflicted by tzara’at, the Rabbis supply a number of theories, seven in Massekhet Arakhin¹ alone! The dominant rationale in Rabbinic sources and that which has proven to be most compelling is that tzara’at comes on account of forbidden, evil, or libelous speech—lashon hara. In fact, VaYikra Rabbah² suggests that the word for one who has been afflicted with tzara’at, a metzora, can also be read as a contraction of the term for libel—motzi shem ra.³ Even beyond this creative etymology, there is a deep connection between the laws of tzara’at and negative speech. Surprisingly, one of the clearest ways to understand this relationship is through the laws of privacy. Privacy is about respecting the right of another person to control what is or is not seen, heard, or known about them. Lashon hara is designed to do just the opposite.

The laws of privacy are found in Masekhet Bava Batra which focuses on property law, both in terms of inheritance and ownership and in terms of other rights and responsibilities that one has as a property owner. Among the Talmud’s concerns is that a person should feel comfortable in their own house or yard, without having to worry that other people will be watching them. In the Talmud, violations of privacy are referred to as hezek re’iyah, damage by sight or visibility. In order to prevent this damage, one neighbor’s right to privacy can limit the way another neighbor builds their own home. Consequently, the Mishnah in Bava Batra⁴ prohibits constructing the windows or doors of my house on my own property in a way that might open sightlines from my house into the house or yard of my neighbors:

משנה בבא בתרא ג:ז
לא יפתח אדם חלונות לחצר השותפין… בנה עלייה על גבי ביתו, לא יפתחנה לחצר שותפין; אלא אם רצה - בונה חדר לפנים מביתו, ובונה עלייה על גבי ביתו, ופותחה לתוך ביתו.
לא יפתח אדם לחצר השותפין פתח כנגד פתח, וחלון כנגד חלון. היה קטון, לא יעשנו גדול; אחד, לא יעשנו שניים... 

Mishnah Bava Batra 3:7
A person should not open windows [that face] a shared courtyard… if he built an attic on top of his house, he shouldn’t [create a door that faces] the shared courtyard. If he wants to he should build a room inside his house, build the attic on top of his house and have the door go into his own house.
A person should not open a door to the shared courtyard that faces another door, or a window that faces another window. If [the opening] was small, he shouldn’t make it larger and if there was just one, he shouldn’t make a second…

In the Ramban’s⁵ commentary on the Talmudic discussion corresponding to these laws, he suggests that the prohibition of lashon hara stands⁶ behind the laws of hezek re’iyah; the damage caused by violating one’s privacy. Although lashon hara is usually thought of in terms of speech; it is more accurate to think of it more expansively as the sharing of information and whether that information is shared by visual or aural means is immaterial. Further, just as lashon hara is intangible, yet can cause irreparable damage, so too seeing something that one is not supposed to see can have a damaging effect.⁷

But what is the actual damage? How is a person compromised by another person’s having seen them?

An answer can be found in Rabbeinu Yonah’s⁸ discussion of another phenomenon which is analogous to lashon hara, but is not always thought of as being incorporated in that category: divulging secrets. And though we intuitively understand the divulging of secrets as a terrible violation of trust, we don’t often think of sharing these confidences as being something prohibited by the Torah. Yet Rabbeinu Yonah states that sharing secrets is a form of slander and is explicitly forbidden:

שערי תשובה לרבינו יונה שער ג רכה
וחייב האדם להסתיר הסוד אשר יגלה אליו חברו דרך סתר אף על פי שאין בגלוי הסוד ההוא ענין רכילות, כי יש בגלוי הסוד נזק לבעליו וסבה להפר מחשבתו, כמו שנאמר, הפר מחשבות באין סוד (משלי טו, כב).

Rabbeinu Yonah – Gates of Repentance 3:265
And a person is required to conceal the secret that his friend has revealed to him, even though there is no [technical] slander in revealing the secret. For in revealing the secret there is damage to its owner and a reason for him to change his mind, as it says, he changes his mind in the absence of secrecy (Mishlei 15:22).

According to Rabbeinu Yonah, the reason why revealing a secret is wrong is that it causes the owner of the secret to change their mind; they aren’t free to behave and interact with others the way that they might have before. What Rabbeinu Yonah is pointing to is that we often operate according to what our reputation dictates, according to what we believe other people know about us. Any information they know about me will cause other people to relate differently to me and then I will relate differently to myself. When this information is divulged without my permission it can unjustly determine the way that I act in the world, whether or not the information is accurate and whether or not the information is positive, neutral, or negative. The right to privacy is about my being able to do what I need to without other people’s judgments determining my behavior; it’s about creating a space for me to be “myself.”

When I don’t control the flow of information about myself, then I also lose control of my right to determine my own behavior. It is this quality that makes sharing secrets a type of para-slander, because it allows a third party to unfairly determine a person’s reputation, undermining that person’s right to determine it for themselves.

This insight is borne out by R. Aharon Yehudah Grossman’s⁹ explanation of the Ramban’s claim that violations of privacy can be understood as lashon hara:

שו"ת ודרשת וחקרת
...שאיסור לה"ר שראובן מספר לשמעון אודות לוי, הרי כשם שלוי אינו רוצה ששמעון ידע אודותיו, כמו"כ הוא אינו רוצה שראובן ידע, ולכן כשראובן מסתכל ברשותו של שמעון הוא עובר על איסור לה"ר, ועוד נלענ"ד להביא מקור לדברי רבינן הרמב"ן מירושלמי מפורש במסכת פאה (פ"א הל"א בדף ד: ) וז"ל, בעון קומי רבי יוחנן, איזהו לשון הרע, האומר, "והיודעו", עכ"ל. ונלענ"ד שהרמב"ן למד והיודעו כפשוטו, כשראובן עושה פעולה "לדעת" עניני שמעון, הרי זה איסור לשה"ר...

Responsa VeDarashta veHakarta
The prohibition of lashon hara is when Reuven tells something to Shimon about Levi.¹⁰ Just as Levi doesn’t want Shimon to know about him he also doesn’t want Reuven to know, and therefore when Reuven looks at the property of Shimon he violates the prohibition of lashon hara. And to bring a further source for the words of the Ramban from an explicit Yerushalmi in Pe’ah (1:1): They asked R. Yohanan—What is lashon hara? [He answered:] The one who says it and the one who knows it.¹¹ And in my humble opinion the Ramban learned “and the one who knows it” in its plain sense, that Reuven has done an action in knowing Shimon’s business and this is the prohibition of lashon hara…

According to R. Grossman, we make a mistake in our ordinary understanding of the prohibition of lashon hara. We are accustomed to thinking that the problem of lashon hara begins at the point of passing on the information, but according to R. Grossman the violation actually begins at an earlier point, with the obtaining of information. The subject of the gossip, whom he calls Levi, is not only concerned with the transmission of information from one party to the next- from Reuven who saw it, to Shimon who listens; he doesn’t want anyone to know this about him, including Reuven! His concern over people talking about him is secondary to his primary concern, that anyone at all will know something about him that he has not chosen to share about himself.

R. Grossman grounds his understanding of the problem with lashon hara in R. Yohanan’s statement in the Talmud Yerushalmi, which he quotes in full, that lashon hara is defined by the one who says it and the one who knows it. Traditionally, R. Yohanan’s statement has been understood to refer to two different people: the one who speaks it, Reuven, and the one who receives the information, who now “knows it”—Shimon. The recipient of the information is called the “knower” because he has become “in the know” on account of the new information that he has received from the gossiper. However, R. Grossman understands that problematic possession of information doesn’t begin with the person who hears the rumor; it begins with the person who didn’t understand that the information wasn’t his to share just as it wasn’t his to know. The “knower” is not only Shimon, who listens to the lashon hara, but Reuven himself, who has been watching Levi, the subject of the evil speech, and gathering information about him.

Reuven should not have been accessing details about Levi’s life; whether or not those details were positive or negative. And as Rabbeinu Yonah teaches, even if Levi has given the information to Reuven in the form of a secret, the information still fundamentally belongs to Levi, the person the information is about. Levi has the right to control what is known about him so that he can determine his own reputation and isn’t subtly or overtly forced to conduct himself differently because of the prying eyes and judgments of others.

Therefore it makes sense that not only negative statements, true or false, are prohibited under the rubric of lashon hara, but that even positive speech is considered inappropriate:

תלמוד בבלי ערכין טז.
תני רב דימי אחוה דרב ספרא: לעולם אל יספר אדם בטובתו של חבירו שמתוך טובתו בא לידי רעתו. 

Talmud Bavli Arakhin 16a
Rav Dimi the brother of Rav Safra taught: A person should never speak positively about his friend, because out of his good [can] come his misfortune.

One way of understanding Rav Dimi’s prohibition is that the danger of speaking even positively about someone appears at a second stage. First I say something good about someone, this is tovato, for his good, and then eventually it might cause someone else to say, “Oh, I don’t think that’s true about Levi! In fact the opposite is true. Levi isn’t great, he’s terrible!” However, Rav Dimi does not state that the harm comes from a second statement that another person might say. He indicates that the evil or misfortune will come as a result of the initial speaking. There is something inherently problematic in speaking about another person, even if you are saying something positive and trying to promote the person you are speaking about. Trying to enhance someone else’s reputation also creates expectations for their behavior, it also has the impact of controlling who that person is by determining how they might be perceived.

There are many different types of tzara’at, but the one thing that every case of tzara’at requires is the involvement of the kohen in the diagnosis and the treatment. Perhaps this is not because the person is not expert enough to determine whether or not they have tzara’at, but in order to enact a type of measure for measure, middah k’neged middah, punishment for their crime of lashon hara. It is to force them to expose themselves to the kohen just like they have exposed others. And the most telling aspect of the process is that once a person has been determined to be a metzora, they need to walk around calling out tamei tamei, impure, impure about themselves¹² sharing this highly personal information with any passerby.

So perhaps the actual punishment for tzara’at is this moment of declaring their own impurity. The gossiper is forced to acknowledge publicly that they have been afflicted with tzara’at. This person who was going around informing on the status of other people or perhaps just collecting information about them for himself, now himself has to go around exposed, letting everyone know of his condition. By experiencing this shame of exposure he can learn to internalize the value of privacy. Once he understands what it’s like to be the object of unwanted attention and uninvited scrutiny he will become wiser and more sensitive regarding obtaining and spreading information about others.

¹Talmud Bavli Arakhin 15b-16a.

² Parashah 16: Siman 1.

³ This type of derivation is known as “notarikon” which refers to scribal shorthand, which often include contractions and abbreviations.

⁴ Mishnah Bava Batra 3:7-8.

⁵ R. Moshe bar Nahman, 12th-13th cent, Spain. See his comments to Bava Batra 59a.

⁶ He also suggests that the prohibition is rooted in the laws of modesty or in a concern about the evil eye.

⁷ This interpretation is my own; the Ramban himself does not explain the connection between any of his rationales and the core prohibition.

⁸ R. Yonah of Gerona, 13th cent, Italy.

⁹ Contemporary.

¹⁰ Rabbinic literature will often refer to theoretical people in a legal case as “Reuven, Shimon, Levi etc.” where we might use Person A, Person B, and Person C.

¹¹ In the Babylonian Talmud, this tradition comes in the form of referring to lashon hara as “three-way language which kills three—the one who tells it, the one who accepts it as true, and the one who says it (this may refer to the subject of the speech).” See Arakhin 15b.

¹² VaYikra 13:45.