21 April 2014


'Thou Shalt Not Go about as a Talebearer among Thy People: Jewish Law and the Private Facts Tort' by Elie Mischel in (2006-7) 24 Cardozo Arts & Entertainment Law Journal 811 comments
As we begin the twenty-first century, the viability of the public disclosure of private facts tort in America very clearly has been called into question. Indeed, the individual's right to keep sensitive personal information private has been under fire for some time; its very existence threatened by an increasingly broad interpretation of the right to free speech. The classic example of the inherent conflict between the right to privacy and free speech occurs when a newspaper publishes information about an individual that is embarrassing, yet truthful.' Theoretically, the newspaper should be liable for the public disclosure of a private fact. However, the courts have generally granted the media tremendous leeway in publicizing truthful information, effectively rendering the private facts tort impotent in all such cases. Legal thinkers like Diane Zimmerman have taken the next step, questioning the very validity and desirability of the private facts tort. Indeed, many of the arguments marshaled against the private facts tort have proved quite convincing.
In such an atmosphere, it may prove very rewarding to those debating the scope of an individual's right to privacy to consider the approaches of other legal systems in the matter of privacy and the law. In particular, the traditional Jewish legal system has developed a novel approach to privacy that may shed some light on the efficacy of the disclosure of private facts tort in the United States.
Part I of this Note chronicles the evolution of the private facts tort in the American legal system and the challenges posed by numerous critics to its legitimacy and effectiveness as a cause of action. Part II examines some fundamental differences between the American and Jewish legal systems, focusing on the interplay of law and morality, as well as the role of human rights in both systems. In addition, the Jewish legal system's approach to freedom of speech and its expression in Jewish history are also considered. Part III analyzes Jewish law's rough equivalents of the private facts tort, Lashon Hara and Tzeniut, highlighting some significant differences between the two legal systems' approaches to privacy law. Part IV compares the application of American and Jewish privacy law to damages for the violation of privacy rights. The conclusion argues that while the Jewish equivalent of the private facts tort is entirely legitimate within the Jewish system of divine law, the private facts tort represents an improper imposition of a particular set of values upon American society.
Mischell goes on to comment
As noted above, both Jewish and American legal thinkers testify to the fact that money does little to compensate the victim of disclosures of private fact. Consequently, the primary purpose of the existence of the private facts tort in American law is to prevent such disclosures in the first place and to "chill" the media. For Warren and Brandeis, the chief aim in creating the tort was not to make the victims of such invasions whole again, but rather to prevent increasingly insidious invasions of privacy from recurring in the future. Conceptually, monetary damages awarded under the private facts tort are more punitive than compensatory. Jewish law, by contrast, does not rely on punitive damages to protect against violations of privacy. The right to privacy is protected by a greater authority, i.e., God Himself.
It is now useful to return to Stanley Ingber's three purposes for the private facts tort. In what way does Jewish law respond to these goals? The first objective in establishing a tort is to publicly acknowledge the very existence of privacy rights by recognizing their violation." For its part, Jewish law succeeds in clearly establishing a right to privacy by creating an extensive web of laws regulating every aspect of speech. Through repeated and earnest warnings and injunctions, both the Bible and the Talmud limit man's right to speak as he pleases. The second objective of the private facts tort is to act as a deterrent to other members of the media who might have committed the same violation of privacy rights. This goal, too, is met quite effectively by the Jewish legal system despite the lack of pecuniary repercussions for those who ignore the law. The divine nature of the law itself acts as a safeguard towards observance. The final goal of the private facts tort is to compensate the plaintiffs whose private lives have been exposed to the public. According to Jewish law, however, this goal simply cannot be accomplished. Emotional harm cannot be made whole through monetary compensation.
Mischel concludes
Privacy and modesty are clearly and unambiguously assigned primary importance within the scheme of Jewish law. Jewish legal scholars are not troubled by arguments that gossip is essential to a working society, nor are they concerned by any contradictory right to free speech. As privacy represents a central element of Jewish law, it is safe to say that Jewish scholars would encourage a similar kind of law in other legal systems. Though Jewish law does not mandate damages for non-physical violations of privacy, it can be argued that its legal scholars would encourage the existence of such a tort in a secular system lacking the inherent coercive power of a divine system of law.
Jewish law, in practical terms, is only effective so long as the people believe in its foundational values. Although it is technically binding upon every Jew, simply by virtue of his or her being born Jewish, a Jew who does not agree with Jewish law is under no compunction to follow it. Nevertheless, regardless of the people's level of observance, Jewish law remains inherently valid. Due to its divine nature, the Torah and Jewish law dictate standards of morality to the people, and not vice versa.
American law, by contrast, depends upon the continued ideological support of the majority of its citizens. Consequently, American law can only maintain its legitimacy by conforming to the belief system of a majority of its citizens; as notions of morality change, so does the law. No part of the law is "divine"; theoretically, should a great majority of Americans wish to amend every last letter of the Constitution, they would have the right and ability to do so. Indeed, the First Amendment has achieved its present power and influence only because the American people have assigned increasingly more importance within their scheme of values to the notions of self expression and personal choice. As such, Americans are commonly upset when they perceive justices to be "legislating from the bench," or imposing a belief system upon society that is not consistent with the values held by a majority of the people.
Although a majority of the states appear to have recognized the private facts tort as legitimate, plaintiffs rarely win such cases. This is, of course, no accident. As standards of morality have grown increasingly liberal, judges, in a conscious and justifiable effort to keep up with contemporary values, have correspondingly narrowed the applicability of the private facts tort. As explained above, we live in a culture that values the exposure of "prurient details of sexual relations" and supports a thriving trade of "unseemly gossip." Given such a culture, were judges to strictly apply the private facts law as originally intended, they would essentially be imposing an outdated ideological perspective upon society.
Modern proponents of Jewish law cannot ignore the prevailing cultural norms of society. Nevertheless, as a system of religious law, it is precisely the mission ofJewish law to reject those social norms and encourage an alternative system of values among its adherents. Whereas the private facts tort represents an inappropriate imposition of a particular value system in American law, its Jewish equivalent, Lashon Hara, embodies the unique ability of Jewish law to influence the consciousness of its adherents.
The picture of an American people obsessed with gossip, so compellingly painted for us by Warren and Brandeis, has no doubt come to fruition. But it is for this very reason that the solution they suggested, the private facts tort, is no longer viable. Secular law, by its very nature, lacks the right to dictate values and morality to the people. For those troubled by America's culture of exposure, the task at hand is not to legislate against it, but to change the culture itself.