By R’ Yaakov Schonberg
BREACHING CONFIDENTIALITY
Bava Basra 39b discusses squatters’ rights: one who squats on land for three years is assumed to be the owner of the property and needs no longer preserve a deed of purchase in order to validate a claim of title. To prevent the squatter from being able to claim ownership by dint of his physical presence on the land, the person previously in possession of the property must issue a formal protest, which breaks the contiguity of the three years needed by the squatter. Such protest is sufficient to negate the claim of the occupant with the result that, unless the squatter can produce a deed, title is awarded to the prior owner. An owner must lodge the protest in front of sufficient people to ensure that it will reach the occupant – namely, three people. The gemora derives this from rechilus, a prohibition that only applies if the person hearing the information would not have heard it otherwise. The common denominator between the laws of rechilus and protest is that they both depend on publicity. Rabba bar Rav Huna asserted that any information related in front of three people is not subject to the prohibition of ‘lishna bisha’ since it can be assumed to have become public knowledge. One is permitted to repeat that information because your friend has a friend and your friend’s friend has a friend, but the initial broadcaster would still have transgressed lashon hara. R’ Zalman Nechemia Goldberg suggests the logic is that when information is conveyed in front of one or two people, those people will realise that if the information gets out, they will be blamed for its disclosure. However, with three people, the potential guilt can always be deflected, and it is inevitable that it will not remain private.
REVEALING SECRETS
The term ‘lishna bisha’ covers two Biblical prohibitions: lashon hara, talking disparagingly about another, and rechilus, gossip. The latter prohibition is forbidden even when it is not accompanied by malicious intent and even if the information is not derogatory in nature. The prohibition of divulging non-personal confidential communication is derived in Yoma 4b from the first pasuk in Vayikra, where it is said that Hashem spoke to Moshe from the tent of meeting ‘לאמר’. Rashi explains the derush based on this word being a contraction of two words ‘לא אמר’ – do not say, having the double meaning of ‘to say’ and ‘not to say’. Moshe is instructed to assume that the message is confidential until he is told ‘go tell’. Torah Shlemah says that Semag (Lo Sa’ase-9) interprets the contraction as ‘lav amur’, a negative commandment has been stated, making it a Biblical transgression. Torah Temimah regards this Chazal as a rabbinic prohibition and Meiri describes this stricture of disclosing secrets as a matter of derech eretz, unseemly behaviour. Rabbenu Yona (Sha’arei Teshuva-3:225) writes that it is forbidden to reveal secrets even if the information does not constitute rechilus. Chafetz Chaim (Be’er Mayim Chaim 2:13:27) makes a similar distinction. He proves that the problem of divulging secrets includes cases that could cause no damage, as Hashem could not be hurt or embarrassed by Moshe teaching his Torah. However, Chafetz Chaim contends that in such cases, confidentiality is merely a middah tova, an expression of good character traits. However, when not respecting privacy will harm the person whose information is being shared, the spreading of that information would constitute lashon hara, forbidden gossip. Meiri derives the inviolability of confidential communication from a non-Biblical source in Mishlei-11:13 הולך רכיל מגלה סוד, translating it to mean: ‘He who reveals a secret is a talebearer’.
PROFESSIONAL CONFIDENTIALITY
The obligation to maintain professional confidentiality is common to many professions, such as lawyers, doctors, accountants and health-care workers. Confidentiality is also sometimes imposed as a contractual obligation in a non-disclosure agreement. These obligations are based on practical considerations in the need to protect the trust in the patient-physician or solicitor-client relationship. There is a need to encourage patients and clients to provide all the information required and to encourage them to seek advice, knowing that what they reveal will be kept in confidence. No such privilege is found in Jewish law, because halacha makes no distinction for professionals, and the requirement for confidentiality applies equally to non-professionals. Several situations may produce ethical or legal dilemmas which have to be resolved in accordance with the local regulatory system and ethics committees have been established for referrals. However, personal information is now computerised and accessed by many, and the intimate and private physician-patient relationship is now rare. Although the secular and halachic concepts of confidentiality are similar, there can be cases where their implementation can give different solutions When the individual’s right to privacy conflicts with the obligation of society to protect its citizens, the latter takes precedence. What if a person stands to be harmed by the withholding of important information from him?
REQUIRED DISCLOSURE
Apart from the general principle that preservation of life takes precedence over other religious and personal obligations, failure to disclose may constitute a violation of לא תעמד על דם רעך, you shall not stand idly by while your fellow suffers harm. This pasuk in Vayikra 19:16 starts with the prohibition against disclosure – לא תלך רכיל בעמיך, you shall not go as a talebearer among your people. This indicates that when these two prohibitions are in conflict, it requires a careful balance of circumstances.
DISCLOSING INFORMATION IN SHIDDUCHIM
Chafetz Chaim (Klal-9) rules that where the potential spouse would certainly not agree to a shidduch if aware of particular sensitive medical information, one is obligated to disclose, otherwise one transgresses לא תעמד על דם רעך. Even when information is not received in a confidential manner, disclosure is only justified when the following series of conditions are met.
- The fault is significant and would prevent the person from living a normal life, and not merely a weakness.
- The disclosure must be presented accurately without embellishment or exaggeration.
- The sole motivation should be to protect the potential spouse, and not because of personal bias.
- The benefit of the disclosure cannot be achieved in any other way.
- The informer must have first-hand knowledge of the information and not based on rumours.
- The shidduch has not been finalized yet – if it has been settled, it is forbidden to mention anything at all.
Poskim add that one should first attempt to convince the affected person to disclose his illness to the other side. If that isn’t successful, it is preferable to hint to the interested party that there is a medical issue without spelling it out explicitly, and they can choose to investigate further on their own. If asked about that particular condition, he may not lie but should be evasive, saying: ‘I am bound by confidentiality’, or ‘it’s not for you’.
RABBI ASHER WEISS
Whilst this applies to anyone who is asked to divulge information, it is particularly vexing for medical professionals who are bound by their secular law obligation to keep a patient’s medical information confidential. Is a doctor expected to violate his duty of confidentiality, perhaps even at the risk of losing his license and livelihood?
Rabbi Asher Weiss responded to this question that one needs to balance the harm to the potential spouse with the loss to the doctor. Whilst refraining from revealing medical information may cause untold harm to their quality of life, it does not usually result in a state of pikuach nefesh. However, the loss of a medical license leads to the loss of professional status, career and livelihood, which should be treated almost as if it is pikuach nefesh. Medical confidentiality is very important, for without it, there is a clear danger that patients would not turn to doctors for fear that their secrets would be revealed. If a doctor is consulted about a patient for shidduch purposes, he should reply that he is forbidden by law from revealing information, without intimating that there is anything of concern.
DELAYED DISCLOSURE
Rabbi Moshe Feinstein was asked regarding a girl who had been seduced but had deep regret for her actions, whether she had to disclose her history. His response (IM-OC4:118) was that there was no question that the facts had to be disclosed, but the timing is crucial. If that information would be provided at the outset, it is unlikely that the shidduch would start. He ruled that it was forbidden to disclose the information until after the couple’s relationship had developed sufficiently to give the issue proper objective consideration. This approach to delay disclosure until after the third or fourth meeting has been adopted universally by Gedolim. Thus, if a third party knows sensitive information about a proposed shidduch, which according to this pesak should only be disclosed by the family at a later stage, unless he has good reason to believe that the family will suppress the information, he may not pre-empt disclosure, as early revelation may ruin a potentially good shidduch.
