Halakhot of Lashon Ha-ra and Rekhilut Part 2
Based on a shiur by Rav Shlomo Levy
The Gemara states in Masekhet Bava Batra (end of 39a) in the name of Rabba Bar Rav Huna, "Anything that is said in the presence of three [people] – it does not violate [the prohibition against] lashon ha-ra." Tosefot (s.v. leit ba mi-shum lishna bisha) explain this to mean that one does not violate the prohibition of lashon ha-ra if he tells the negative information to three people. The obvious question arises, how does the presence of three people solve the problem of lashon ha-ra?
The Chafetz Chayim writes in several places that we cannot possibly understand this halakha according to its straightforward meaning. He brings – among other sources – the comments of Tosefot in Masekhet Arakhin (16a) on this statement in the Gemara:
"Meaning, in a case such as this one, regarding the number of lights in his fellow's home, where it may appear as though he did not say this as a negative remark. But if he makes a pejorative remark about his friend, even if he would have said it in his presence – this constitutes lashon ha-ra."
Tosefot explicitly establish that we allow lashon ha-ra in the presence of three people only when one makes a comment that does not qualify as lashon ha-ra in the absolute sense, when the comment can be interpreted either as a compliment or an insult. When, however, a person speaks outright lashon ha-ra, then it is forbidden even in the presence of three people. The reason is that when a person speaks about someone to three people, we consider him as having spoken in the presence of the subject himself. Therefore, if his comments can be interpreted as either positive or negative, the individual can defend himself. If, however, the remarks are clearly pejorative in nature, the subject has no possibility of defending himself.
The Chafetz Chayim explains, based on this position of Tosefot, that when it comes to an ambiguous comment, the fact that the person made this comment in the presence of three people indicates that he spoke with good intentions. Therefore, the listeners will interpret his remarks in a positive light. In other words, we can determine the intent of the speaker based on his audience. When three people are listening, we may assume that the speaker made the comments with positive intent.
It emerges from the Chafetz Chayim's discussion that when dealing with negative speech in the absolute sense, it is forbidden to speak even in the presence of the subject, all the more so in the presence of three others, who will quickly pass the information on further.
The Rashbam, in Masekhet Bava Batra, explains the sugya differently:
"[It does not violate lashon ha-ra] if they then go ahead and say to the person, 'This is what so-and-so said about you.' The reason is as it is explained in Arakhin… your friend has a friend [meaning, information tends to spread], and Abayei said there, 'Anything that will ultimately be discovered – it does not violate lashon ha-ra."
According to the Rashbam, this Gemara does not mean that one who speaks negatively about someone else in the presence of three people does not violate the prohibition of lashon ha-ra. Rather, the three listeners do not violate the prohibition if they then repeat the comments to the individual about whom they were said. The moment three people hear the information, we may assume that it will ultimately reach the subject; it is therefore permissible to share it with him.
Similarly, the Rambam writes in Hilkhot Dei'ot (7:5): "If these words were spoken in the presence of three people, then the matter has already been heard and become known. If one of the three then tells the matter again, this does not violate lashon ha-ra, so long as he does not intend to pass on the word and expose it further." Like the Rashbam, the Rambam interprets the Gemara as referring to the retelling of the information by one of the three listeners.
Commenting on Bava Batra 39b, the Rashbam cites a different explanation from his rabbis: "All our rabbis explain that 'mecha'a,' too, involves lashon ha-ra, since he claims that so-and-so is a thief. Therefore, according to Rabba Bar Rav Huna, if it said in the presence of [only] two people, it does not qualify as 'mecha'a' because it violates lashon ha-ra." The sugya in Bava Batra arrived at the issue of lashon ha-ra from its discussion concerning the laws of "chezkat sadot." A person who has spent three years on a given piece of real property becomes its presumed owner, unless the thee-year period is disrupted by a "mecha'a" – a verbal protestation on the part of the initial owner. The Rashbam's rabbis explained that Rabba Bar Rav Huna's halakha concerning speech in the presence of three refers specifically to a case of "mecha'a," when the owner of a property wishes to establish his ownership and prevent the establishment of a chazaka (presumed ownership) by another. In such a case, the owner must voice his chazaka in the presence of three people, because otherwise, it would constitute lashon ha-ra. It turns out, then, that this halakha was initially stated not as a leniency in the laws of lashon ha-ra, but rather as a stringency in the specifications of "mecha'a." The reasoning behind this halakha would appear to be that one who makes a remark to three people assumes that it will be spread. He therefore exercises caution and ensures to speak the truth, so as to avoid any possible conflicts with the person about whom he speaks.
It emerges from this approach of the Rashbam's rabbis that even when the speaker's own interests are at stake, he may speak about the wrongs committed by another person only in the presence of three people, since their presence will ensure the accuracy of his report. If the subject of his speech committed no wrongs, then he may not speak about him at all, even in the presence of three people, and even if his own interests are at stake.
Rabbenu Yona, there in Bava Batra, offers the following explanation:
"We may explain that it refers to matters that may be spoken if there are true, such as if someone files a complaint against his fellow in the presence of other people for an injustice he committed against him, or if he tells about damages his fellow caused him… Certainly, matters between him and his fellow that cannot be resolved until he returns [the money or property in question] or until he appeases him, and he fails to do so, or regarding other misdeeds to which he resorts and commits intentionally… it is a mitzva to criticize him in anyone's presence… Regarding this it is said, 'Anything that is said in the presence of three [people] – it does not violate [the prohibition against] lashon ha-ra'."
Rabbenu Yona here follows the general approach of the Rashbam's rabbis, only with an important extension, which has relevance to modern-day life. Often, the speaker believes that transmitting the information will not only help him, in his personal dispute with the subject, but will also have an effect on the subject, in that he will commit fewer transgressions if he knows that people will speak about his misconduct. In such a case, Rabbenu Yona rules, it is permitted to convey the information. But we deal here not with comments made in private for no purpose, that will not help resolve anything, but rather with a situation where a person's conduct will be refined and the speaker is driven by purely sincere motives.
We may, perhaps, extend this idea further and view within it the common notion of "the public's right to know." This is assuming that if the given misdeed becomes public knowledge, the perpetrator will refrain from repeating it, or that the publicity will deter others from such conduct.
One could further claim that the story itself serves as a punishment; the publicity given to a person's misconduct serves as a punishment for his behavior.
In contemporary society, this principle has become ingrained and widely accepted as the cornerstone of democracy. Laws of libel address only situations in which the reports were inaccurate. The law does not address accurate reports about people's wrongdoing, and the widespread philosophy is that if people do not want negative information spoken about them, they should not act improperly.
In this context, we must emphasize the difference between this outlook and the perspective of Halakha, which finds expression in the aforementioned comments by Rabbenu Yona. Not everyone is worthy of punishing, or should punish, the wrongdoer; not everyone can serve as the judge and the executor of the sentence. It is forbidden for an average person to punish another person.
Most of the information reported in the press is outright lashon ha-ra. There are, indeed, a number of people, namely, public personalities, who in effect permit the publication of their lives and conduct. The public undoubtedly has the right to learn about these people, and it is therefore permissible to publicize negative information about them, not with the intent of punishing, but rather out of a desire to bring the facts to the public's awareness. If, however, the speaker or writer publicizes the information with the intent of punishing the subject, this is clearly forbidden, even if the publicity indeed serves a purpose.