SLANDER

The only instance of defamation in biblical law for which a penalty is prescribed is that of the virgin (Deut. 22:19) – and that defamation is in the nature of a matrimonial stratagem (cf. Deut. 22:16–17) rather than of a specifically defamatory offense. Still, in order to invest the prohibition of defamation with the greatest possible weight, talmudic jurists interpreted the biblical injunction, "Thou shalt surely rebuke thy neighbor, and not bear sin because of him" (Lev. 19:17), as meaning that you may reprove your neighbor so long as you do not insult him; but if you make him blush or turn pale from shame or fury, then you have incurred guilt because of him (Sifra, Kedoshim 4:8; Ar. 16b). Other biblical exhortations – like "Thou shalt not go up and down as a tale bearer" (Lev. 19:16), or "Thou shalt not utter a false report" (Ex. 23:1), or "Thou shalt not hate thy brother in thy heart" (Lev. 19:17), or "Thou shalt not take vengeance, nor bear any grudge" (ibid., 18), and "Love thy neighbor as thyself" (ibid.) – have all been summoned to help invest the prohibition of slander with biblical authority (Israel Meir ha-Kohen of Radin, Ḥafez Ḥayyim, Petiḥah). Particular prohibitions of insult, such as "Thou shalt not curse the deaf" (Lev. 19:14), or "Thou shalt not put a curse upon a ruler of thy people" (Ex. 22:27), were interpreted as particular instances of a general prohibition against insulting (Sifra, Kedoshim 2:13; Mekh., Mishpatim 19; Shev. 36a).

Though regarded as the violation of express biblical negative injunctions, slander is not punishable even by *flogging, because mere talk does not amount to an overt act, and only such acts are punishable (Yad, Sanhedrin 18:2). More severe are the moral and religious admonitions against slanderers: "even though the slanderer is not flogged, his sin is very great indeed, and the sages have said that he who makes another's face turn pale in public, has no share in the world to come" (Avot 3:12). "Therefore everybody must be very careful not to abase another man in public, not to call him a name which puts him to shame, nor to say anything that might embarrass him" (Yad, De'ot 6:8). Some scholars went so far as to put the slanderer on the same footing as a murderer, because both "shed blood" (bm 58b); and all slanderers are characterized as wicked and stupid (Yad, Ḥovel u-Mazzik 3:7).

It would appear that mere moral exhortations were found insufficient to curb the mischief. A later source provides specific sanctions as follows: A person calling another a slave, shall be placed under a ban (niddui; see *ḥerem); a person calling another a bastard (*mamzer) shall be liable to 40 stripes; and if a person calls another wicked, the other may interfere with his livelihood (Kid. 28a). Attempts were made to interpret these particular sanctions as talionic (cf. Tos. and Beit ha-Beḥirah, Kid. 28a); but it is not impossible that they simply reflect decisions taken in cases which had actually occurred. The sanction of niddui for calling a man a slave has been codified (Yad, Talmud Torah 6:14: Sh. Ar., yd 334:43); and as for the administration of disciplinary floggings (makkat mardut), the rule was eventually held to be subject to local customs: where customary local regulations provided for different sanctions for slander, the customary rule prevailed (Rosh, resp. 101:1; Rema, Ḥm 420:41). In fact, disciplinary floggings appear to have remained in most places the most common punishment, at least for graver cases of slander (see e.g., Maharshal, resp. nos. 11, 28, and 59; Yam shel Shelomo bk 8:34, 48, and 49). In other places, and in lighter cases, fines were imposed – and we often find fines substituted for niddui or for floggings at the option of the insulted person who had first to be appeased (Tur, Ḥm 420:33 and Beit Yosef thereto).

A particular instance of punishable slander is insulting a scholar. A person convicted of having insulted a scholar is liable to niddui as well as to a fine of one litra of gold awarded to the aggrieved scholar (Yad, Talmud Torah 6:12). This preferential treatment of scholars left its traces also in the civil law: while a person is not liable in damages for mischief done by word of mouth only (bk 91a; Yad, Ḥovel 3:5; Ḥm 420:39), where a scholar was put to shame, he is awarded 35 gold dinars by way of fine (tj, bk 8:6; Yad, Ḥovel 3:5; Rashba, resp., vol. 1 no. 475; Ribash, resp., nos. 27, 216, and 220). The civil and criminal remedies are, of course, overlapping and identical. The insulted scholar may always forgo the fine (Yad, Ḥovel 3:6). The remedy allowed to "scholars" was soon extended to all pious people (Rosh, resp. 15:10; Tur, Ḥm 420:32), and eventually became obsolete when remedies for slanders were no longer confined to particular classes of persons.

Another particular instance of slander is that of widows and orphans. "Mistreating" widows and orphans means, literally, causing them distress; if you cause them distress by insulting them, God will heed their outcry as soon as they cry out to Him; His anger will blaze forth and He will put you to the sword, and your wives shall become widows and your children orphans (Ex. 22:21–23). This is a typical instance of *Divine punishment: for though the court will not impose flogging for this offense (see above), still the punishment therefore is expressly prescribed in the Torah: "and a covenant was concluded between them and the Creator of the World, that whenever they cry, He hears them and acts" (Yad, De'ot 6:10). Slandering the dead is also regarded as a great sin, to be expiated by fasting and prayers; and the court may punish it by fine (Mordekhai, bk 81–82; Rema, Ḥm 420:38). While there are dicta to the effect that speaking the truth cannot constitute slander (Rema, Ḥm 420:38), the better view seems to be that it is irrelevant whether the slanderous words were true or not (Israel Meir ha-Kohen of Radin, Ḥafeẓ Ḥayyim 1:1). In the State of Israel, the Knesset enacted "The Prohibition of Defamation Law 5725 – 1965" (as amended in 1967).

About Jewish legal principles in this law, see Elon, in bibl.

[Haim Hermann Cohn]

Even inanimate objects should not be disparaged, and the Talmud uses the biblical account of the ten spies who, upon their return from their mission, slandered the Holy Land (Num. 12–14) to emphasize the gravity of this sin. In fact, rabbinic tradition considers slander a violation of moral and spiritual obligations, and assigns to it a weight that is almost equal to the cardinal sins of idolatry, adultery, and murder combined (tj, Pe'ah 1:1).

The most vicious form of slander is false accusations of calumnies made to a ruling authority (malshinut) with the intent of endangering a man's livelihood and even his life. *Informers, through slanderous accusations, sometimes jeopardized entire Jewish communities. They were, therefore, regarded as particularly vicious. They were placed in the category of those who commit assault with intent to kill, and putting them to death was authorized. If their intention to slander was clear, death was sanctioned even before the crime was committed. The extent to which Jewish communities were harassed by slander is indicated by the inclusion, in the daily Amidah service, of the prayer, "And for slanderers, let there be no hope."

[Sol Roth]

Israeli Law and Jewish Law

The halakhic principles of the laws of slander provided inspiration for legislation of the Defamation Law, 5725 – 1965, in its general approach if not in its details. For example, Section 14 of the Law grants protection in cases where "the matter published was true and the publication was in the public interest" while, according to the halakhah, as stated, the truth of the matter would apparently not constitute a defense. Acceptance of the overall approach of Jewish law in this matter, without necessarily adopting all of its numerous and specific details, seems the proper approach in this matter. It does not seem appropriate to turn the details of the halakhah into legal prohibitions, but they should be left, rather, as religious prohibitions alone. Furthermore, the various situations in which it is permitted by law to publish slander also originate in the need to balance between the individual's right to a good name, on the one hand, and freedom of expression and the freedom of public criticism, on the other. Decisive importance is accorded in Jewish tradition to the latter as well, as noted by the Supreme Court in the Neiman Affair (ea 2, 3/84, 2 Neiman et al. v. Chairman, Central Elections Committee, pd 39 (2) 225, 294–296; per Justice Menachem Elon. "The multiplicity of opinions is not a negative phenomenon or fault, but is substantive to the world of halakhah. 'There is no lack or peculiarity to say that the Torah is thereby made into two Torahs, Heaven forbid; to the contrary – such is the way of the Torah, for both are the words of the Living God" (ibid. p.295). (See also *Rights, Human: Freedom of Speech.) It may be noted that permission to utter slander, such as "beneficial defamation," also appears in certain cases in Jewish law: for example, under certain conditions it is permitted to recount slander about litigants, if it will lead to the resolution of the dispute (See Cr.a Jerusalem) 113/96 Biton v. Kopf; Justice Elyakim Rubinstein). By virtue of these, attempts are made to sustain a democratic system notwithstanding the numerous halakhic, although not necessarily legal, restrictions involved in the prohibition of defamation regarding such subjects as the publication of corrupt acts of public officials in the media or management of an election system (see bibliography, Ariel).

interpretation of the law in israel in light of the principles of jewish law

The Supreme Court ruled that Jewish Law is an important source for construing the Defamation Law, in reliance on the explanatory notes to the original and amended draft bills, as well as in reliance on the Knesset debates conducted during passage of its legislation, which included extensive reference to the prohibition of defamation in Jewish Law, the scope of the prohibition and the sanctions found therein (lca 531/88 Avneri et al. v. Shapira, pd 42 (4) 20; Justice Menachem Elon). In the Avneri case, the District Court had issued a temporary injunction against the publication of a book which, according to the plaintiff, defamed him. The Supreme Court decided not to intervene in the District court's decision, relying extensively on the principles of Jewish Law in the matter of prohibition of slander, on the one hand, and freedom of public criticism, on the other. In another case, the Jerusalem Magistrates Court utilized the halakhic principles regarding "beneficial defamation," as specified in the book Ḥafetz Ḥayyim (Hilkhot Lashon ha-Ra, sec. 10; Hilkhot Issurei Rekhilut, sec. 9) in its interpretation of the requirement of "public interest" in the aforementioned Section 14 of the Defamation Law:

There is a need for credibility … nothing should be added or detracted. A first time publication is not the same as the publication of something already generally known. The wording must be fair, providing an exact description of the events as they occurred. Information that is dubious should be presented as such, and [should be published – me] only if the chances of benefit deriving from the publication reasonably outweigh the chances of damage being caused. The publisher's intention should be thoroughly examined, for if he was motivated… by alien considerations, there is suspicion as to the credibility of the matter in general and the manner of its presentation in particular. Defamatory material should not be published for its own sake. Proportionality and sincerity are required. It should be recalled and mentioned that "life and death are in the hands of the tongue" (ta 374/02 Cohen v. Olmert; Judge Noam Solberg. See also 6122/01 Segev v. Eyal; Judge Noam Solberg).

There is a special prohibition against reminding a sinner of his previous offenses, which is part of "the Enactment for the Encouragement of Penitents" (takkanat ha-shavim), and this prohibition, together with the other rules of Jewish Law, inspired legislation of the Crime Register and Rehabilitation of Offenders Law, 5741 – 1981 (see also *Punishment; and see ala 18/84 Adv. Anon, Adv. v. The State Prosecutor, 44 (1) pd 353, per Justice Menachem Elon. cf (Jerusalem) Anon v. Anon, pm 54 (2) 397; Justice Zvi Tal).

What is the law when a person claims that a publication stating that he acted lawfully constitutes defamation exclusively because the society in which he lives regards actions in accordance with the law as negative and scandalous on the part of those engaged in them? In the Dardarian case (ca 466/83 Ajiman v. Dardarian, 39 (4) pd 734), the injured party was a Jordanian citizen who served as Archbishop of the Armenian Church in Jerusalem. He claimed that a publication stating that he cooperated with Israeli authorities and supported their actions and policy in Judea and Samaria constituted defamation because, in the society in which he lived, this fact could make him an object of hatred. The Supreme Court ruled that the claim should be rejected. Justice Elon's ruling was based on an analogy from Jewish Law concerning an illegal contract, invoking the Foundations of Justice Law, 5740 – 1980 (see *Mishpat Ivri). Under Jewish Law, the court will not deal with a contract whose purpose is the commission of an illegal act. On the other hand, where the very making of the agreement involves a transgression of a religious prohibition, it does not nullify the validity of the agreement, and the court will have recourse to it (see *Contract). This position was adopted in part by Israeli law, in Sections 30 and 31 of the Contracts (General Part) Law, 5733 – 1973, according to which a contract "the making, contents or object of which are illegal, immoral or contrary to public policy is void" (Section 30). At the same time, the court may, if it deems it just to do so, exempt a party from reimbursement of monies paid under a contract and, if one of the parties fulfilled his obligation under the contract, may require the other party to fulfill the corresponding obligation (Section 31). Justice Elon ruled that, similarly, the court may provide a remedy to a person claiming that he was defamed by a publication that stated that he behaved lawfully, if that publication defamed him in the society in which he lives. On the other hand, there are cases in which the State's interest "not to support to actions and opinions which would undermine the rule of law and State sovereignty" (p. 754) may prevail, and in those cases the court will not provide the claimant with a remedy. Justice Elon ruled that the instant case fell into the latter category. The view that cooperation with the Israeli authorities in the maintenance of law and order in Judea and Samaria is undesirable is "so heinous and serious … from the perspective of the foundations of the legal system of the State of Israel as a state governed by law, and from the perspective of the maintenance of Israel's security against its enemies, and is so opposed to the basic concepts of law and order, that it [the rejection of that view] overrides the right of the appellant not to be harmed in the eyes of members of his circle who hold this perverse view." As such the court was not prepared to award the plaintiff damages by reason of damages caused to him by that publication, which defamed him in the society in which he lived (ibid.).

[Menachem Elon (2^nd ed.)]

bibliography:

D. Daube, in: Essays in Honor of J.H. Hertz (1942), 111–29: et, 1 (19513), 160f.; 3 (1951), 49f.; 9 (1959), 207–14; N. Rakover, in: Sinai, 51 (1962), 197–209, 326–45; T.D. Rosenthal, ibid., 53 (1963), 59–66; M. Elon, in: ilr, 4 (1969), 100–2. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 3:1378–80, 1434–36, 1555–57; idem, Jewish Law (1994), 4:1642–46, 1707–9, 1847–50; idem, Jewish Law: Cases and Materials, (1999), 524; M. Elon and B. Lifschitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), (2), 337–38; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 233; A. Ariel, "Lashon ha-Ra be-Ma'arekhet Ẓibburit Demokratit," in: Ẓohar, 6–7 (1981), 37, 41.