Kate, the Talmud can help
Amid the controversy over paparazzi pursuit of Prince William’s girlfriend, Nathan Jeffay finds out how far Jewish law would go to protect a person’s privacy
Paparazzi photographers have again been under fire after Prince William begged t hem to leave alone his girlfriend, Kate Middleton. The photographers have been accused of harassing the prince’s girlfriend in order to meet the public’s apparently insatiable appetite for celebrity snaps.
As some newspapers back down and promise not to snoop on Middleton, a debate rages, among members of the public and media organisations alike, about the extent to which people should be able to conduct their personal affairs in private.
This was a favourite topic of Rashi, the medieval rabbinic commentator. He considered the classic biblical blessing given to Israel, “How goodly are your tents, Jacob, your dwellings, Israel.” It hardly needed saying, he explained: they were goodly “because their doors were not opposite one another”. In other words, because privacy was paramount.
But with Rashi long gone, it may be tempting to think that Jewish wisdom in this context is little more than a curiosity in a digital age. No less than an authority than the American Senate, however, has shown interest in what the Torah has to say. When considering what the American approach to privacy should have been in the 1960s, the Senate judiciary committee on privacy law called on Rabbi Norman Lamm, now chancellor of Yeshiva University, in New York, for a Talmudic testimony.
When recently interviewed about this on the Yeshiva University website, Rabbi Lamm recalled that at the time of the Senate hearings, “privacy law was just coming into being in America”. Judaism was ahead of the game, he felt. “I showed that privacy was an implicit right in Jewish law, probably going back to the second or third century, when it was elaborated on in a legal way.”
Respect for privacy was a central value in Jewish thought from the Bible onwards. This offered valuable inspiration for modern democracies, he argued. He set out his views in a journal article on The Fourth Amendment and Its Equivalent in Halachah (the Fourth Amendment deals with “the right of the people to be secure in their persons, houses, papers and effects”.)
Rabbi Lamm’s work, which was discussed in the senate, has since become a classic text on the subject. “I tried to give some of the philosophical background to privacy and show that it has some very interesting roots and parallels,” he said. “ Indeed, the issue goes back to the Bible itself, where a creditor cannot enter the premises of the debtor and must stand outside and ask permission to enter. In fact, you cannot invade an individual’s privacy.”
Rashi’s gloss on the tents, in fact, draws on the precedent of the Talmud in Baba Batra (60a), where the Mishnah calls for the nearest thing late antiquity had to net curtains. It says: “In a courtyard which he shares with others, a man should not open a door facing another person’s door, or a window facing another person’s window. If it is small, he should not enlarge it.”
As communication has become more complex, so rabbinic ideas have developed. In a well-known ban, the 10th- to 11th-century Rabbeinu Gershom forbids people reading others’ mail without permission — applicable today to emails, voicemail messages and texts.
Not every rabbi’s notion of privacy sits so comfortably with modern sensitivities. Few things are more carefully guarded today, especially in religious circles, than the details of a woman’s menstrual cycle. But Rabbi Yochanan, a hero of many Talmudic accounts, saw no problem in sitting outside of the mikveh, making him privy to each woman’s rhythm.
Admittedly, he had the mikveh-goers’ good at heart. The Talmud (Bava Metzia 84a) records his declared rationale: “When the daughters of Israel will come up from performing the mitzvah of immersing in a mikveh, let them see my face, that they should have sons that are as beautiful and as learned as I am.”
But for the main part, points out American halachist Alfred Cohen, “in Jewish law, invasion of privacy was tantamount to trespass or theft, and similarly punishable.” In a journal article, he writes: “There are ample precedents through centuries of Jewish legal writings to indicate that the individual is entitled to prevent the public from intruding upon or sometimes even knowing about his private doings, correspondence, and other aspects of his private domain.”
Does all this lead to an indictment of the paparazzi and allow Miss Middleton to claim the force of Jewish tradition; even to say that the hounding by the photographers is tantamount to trespass or theft? Yes, according to Ellis Weinberger, a research associate at the Cambridge University Library, who has applied his research on Judaism and privacy to issues as current as electronic databases.
“If the Mishnah is concerned to avoid you being able to see in to people’s houses, how much more so with regard to taking pictures into, or near, someone’s house,” Mr Weinberger says. The Jewish belief, which he says has applications beyond the Jewish community, “is that you should be able to carry out private affairs privately, though admittedly if you are acting in a public capacity, this is different.”
Going further, he argues that the paparazzi — and potentially the millions of people with camera phones — fall under Maimonides’s strong words against “talebearers”. “They did not have this technology when Maimonides wrote, but it is not the form that is the problem, it is the function,” he explains. Bearing photographic tales is just as reprehensible as bearing verbal ones.
If the Press Complaints Commission cannot protect Kate Middleton’s privacy, she could always turn to the Talmud