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

The Jewish Chronicle - - Judaism -

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

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