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12/06/2013

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Email Ethics

By Rabbi Joshua Flug

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I. II.

Introduction- This shiur outline is the second part of the series on communication. It will focus on various ethical issues that arise involving email. Spam and Direct Email Marketing a. Background- According to a California statute updated in 2004, 40% of all email traffic is spam costing U.S. organizations ten billion dollars a year in lost productivity and equipment. In 2005, the CAN SPAM Act was passed which placed heavy restrictions on unsolicited email marketing which include providing the recipient the opportunity to opt out and restrict deceptive marketing practices. b. Is it permissible to use marketing ploys to increase sales? i. The Mishna quotes a dispute between R. Yehuda and Chachamim as to whether it is permissible for a seller to give treats to children in order that they frequent the store. R. Yehuda prohibits this practice and Chachamim permit it. {} ii. The Gemara states that the reason why Chachamim permit giving away treats is that the other store owners also have the opportunity to offer treats. This implies that the issue is one of unfair competition. There is no issue per se with marketing to kids or giving away free items. {} c. Is it ethical for a marketer to take away business from local salesmen? i. The Gemara has a discussion about whether someone is allowed to come and compete with an established business. The conclusion seems to be that if one doesn't live in the area and pay the local taxes, he can't compete with the locals. {} [Please note that this issue warrants its own shiur outline which is planned for a future date.] ii. There is an exception to this rule: One of the takanos of Ezra was that peddlers can come from other cities and sell door to door. {} 1. Rambam (1138-1204) writes that the purpose of the takanah was to allow women greater access to perfumes and spices. {} 2. Rama (1520-1572) writes that based on this logic, the exception only applies to spices and similar things. {} a. Rama doesn't clearly define what "similar things" means. b. The Beis Din of the Israeli Chief Rabbinate ruled that the exception of the peddlers includes any business where the merchants benefit from leaving their establishment. For example, insurance salesmen all benefit from going to people's homes and businesses to sell insurance. Therefore, there is no issue for a person to knock on homes when there is a local insurance agent because that insurance agent also goes door to

door in his neighborhood and other neighborhoods. {} [See the entire psak here.] c. R. Chaim Jachter suggests that the same may apply to goods that are sold online. It is now a global marketplace and the local vendors also have an opportunity to sell goods outside of their locale. Therefore, someone else can market to the locals. [See article here.] d. Use of deceptive marketing practices i. Marketers will sometimes be deceptive in email by putting something in the subject line that will get the recipient to open the email. ii. Rambam writes that giving treats to children does not violate geneivas da'as. {} 1. R. Chaim Palagi (1788-1869) discusses why there should be a concern for geneivas da'as. He offers a number of suggestions all hinting to the idea that there is a fine line between marketing and fraud {} (see Dilbert cartoon that illustrates this point). It may be permissible to give treats to kids because there are no conditions attached and there are no hidden agendas (everyone knows that it is a marketing ploy). However, once you try to engender good will using deceptive practices you can either violate geneivas da'as or ona'ah (which will be discussed in the next section). III. Sending/Forwarding Nuisance Email a. Background: This section applies to direct marketing, but also to friends and acquaintances who send emails that the recipients are not interested in receiving. This may include jokes, news items or internet rumors. Sometimes these email are part of a scam where a scammer uses innocent victims to forward deals that look they are worthwhile. b. The Torah repeats the prohibition against ‫ )אונאה )לא תונו‬in the same parasha, which leads us to the conclusion that there is a prohibition against monetary ‫ אונאה‬and a prohibition against causing someone suffering through one's words. {} i. Rashi (1040-1105) gives two examples: Angering someone through words or giving him bad advice. {} 1. Rashi also includes giving bad advice in the prohibition against lifnei iver. {} Yet, there is no contradiction. If one gives bad advice in a way that the victim will not actually fall prey to the bad advice, it is only a violation of ‫ אונאת דברים‬for causing the fellow mental anguish. If the victim never finds out that the advice was bad, there is no mental anguish and there is only a violation of lifnei iver. If the victim finds out about the scam after he falls prey, it is a violation of both.

ii. Sefer HaChinuch writes that you can't possibly list every case where someone can cause someone else mental anguish and that God knows when someone does something to someone else to cause them anguish. {} iii. R. Eliezer Papo (1785-1828) writes that a general rule regarding ‫ אונאת דברים‬is to not do something to someone else that you wouldn't want done to yourself. {} iv. In applying this to email, if you are someone who doesn't appreciate receiving nuisance emails, you shouldn't send these emails to others. c. R. Moshe Chaim Luzzatto (1707-1746) has a piece in Mesillas Yesharim where he discusses stealing people's time. {} His discussion is limited to employees, but in theory, it could apply to wasting people's time. i. The Talmud Yerushalmi discusses a case where one picks a splinter off of a fence to pick one's teeth. Even though the owner of the fence doesn't care about the splinter, one should be concerned that if everyone took that attitude, there would be no fence left. {} ii. Shulchan Aruch writes that it is technically permissible to take a small amount from someone else if it is known that he won't care. However, it is a midas chasidus to avoid this because if everyone does this, it will have an impact. {} iii. One can apply this logic to wasting people's time with an email. While it is arguable that the few seconds it takes to see if an email is worth reading is negligible, those few seconds add up when one has lots of emails to sort through. Therefore, it would be a midas chasidus to avoid wasting people's time: 1. Using a proper subject line (that connotes that the email is not work related) would help this. 2. Offering a "no offense taken" opt-out option for friends would also be a good practice. IV. Forwarding emails (adapted from this shiur outline on Privacy) a. When one forwards email to other people, there may be information in that email that the original sender did not want to share with others. Similarly, people sometimes reply to emails and add other people to the conversation without realizing that the email thread contains other information. b. The Prohibition against Revealing Secrets i. The Mishna states that it is prohibited for a judge to disclose which judges ruled with the majority and which ruled with the minority. {} The source for this prohibition is a verse in Mishlei. {}

ii. The Gemara states that when someone is told something, he may not disclose that information to someone else. {} 1. R. Menachem Meiri (1249-1306) implies that it is not an actual prohibition but a middah tovah. {} 2. R. Achai Gaon (8th century) writes that there is an actual prohibition involved. {} 3. Meiri's opinion can actually be a stringency in cases where it is arguable that there is no technical prohibition. For example, one can argue that the prohibition doesn't apply to written materials or email because the prohibition was only against something that was spoken. Yet, according to Meiri, it is a question of what is proper middos. iii. Rabbeinu Yonah (d. 1263) writes about the prohibition against revealing secrets and notes that there are two separate problems: {} 1. By disclosing information that was given in confidence, one causes damage to person who wanted the secret to remain a secret. 2. Second it is a violation of tznius to tell other people about private matters. 3. Rabbeinu Yonah then notes that there are two verses in Mishlei that connect revealing secrets with rechilus in two different ways: a. Goleh sod holech rachil implies that one who reveals secrets will inevitable someone who speakes words of rechilus. {} b. Holech rachil megaleh sod implies that if you reveal something in confidence to someone who violates rechilus, he will tell others (i.e. be careful not to confide in such an individual). 4. The implication of Rabbeinu Yonah is that the prohibition against revealing secrets exists independent of the prohibition against rechilus. Yet, revealing secrets leads to rechilus and vice versa. 5. There is an important practical difference between the two reasons for the prohibition against revealing secrets: a. According to the first reason, it is arguable that the prohibition only exists if someone was told something in confidence. If it is information that the person discovered on his own, perhaps there is no prohibition to tell others (assuming there is no lashon harah involved). b. According to the second reason, it is a violation of tznius, and the method in which the original information was procured should not make a difference.

c. Chafetz Chaim (R. Yisrael Meir Kagan 1838-1933) quotes both reasons for the prohibition against revealing secrets. {} d. R. Yehuda Assad (1794-1866) discusses whether there is a prohibition against revealing something that was transmitted in writing. He concludes that there is a prohibition because R. Achai Gaon ties this prohibition together with the prohibition against lashon harah. {} c. The Cherem of Rabbeinu Gershomi. Rabbeinu Gershom (c.960-1040) instituted a number of charamim on various activities including reading someone else's letter. This particular cherem is recorded by Maharam MiRutenberg (1215-1293). {} ii. The question is: Does this cherem extend beyond reading someone else's letter to other violations of privacy or is the cherem limited to specifically reading someone's letter. There are really two components to this question: 1. R. Moshe Sofer (1762-1839) notes that some of the charamim of Rabbeinu Gershom introduce new prohibitions that didn't previously exist, while others come to reinforce a laxity in observance of biblical or rabbinic prohibitions. If the cherem against reading someone else's letter is reinforcing a previously existing prohibition, then even if the particular cherem doesn't address other related issues, it may still be prohibited. {} 2. If the cherem introduces a new prohibition, are other activities included in this prohibition? iii. The Nature of the Cherem 1. R. Ya'akov Chagiz (1620-1674) was asked whether the cherem applies even the envelope does not say "PGYN" (an acronym for "poreitz geder yishchenu nachash, a term used for someone who violates charamim and takanos). He responded that regardless of the cherem, there is still a prohibition against reading someone else's mail because of the prohibition of "lo selech rachil." {} 2. R. Chaim Palagi maintains that the prohibition against reading mail is a violation of "v'ahavata l'rei'acha kamocha." {} a. It is not clear whether the impetus for the cherem was so that people don't eventually violate the prohibition or whether the cherem serves to reinforce the prohibition. iv. While it is arguable that forwarding email is not a technical violation of Cherem D'Rabbeinu Gershom, one must consider the prohibitions of ‫לא תלך‬ ‫ רכיל‬and ‫.ואהבת לרעך כמוך‬

‫7. פסקי דין רבניים חלק ו' עמ' 69‬

‫1. מש' בבא מציעא ס.‬ ‫2. בבא מציעא ס.‬

‫3. בבא בתרא כא:‬ ‫8. רמב"ם הל' מכירה יח:ד‬

‫9. שו"ת סמיכה לחיים חו"מ ס' טו‬

‫4. בבא קמא פב.‬

‫5. רמב"ם הל' שכנים ו:ט‬ ‫ויקרא כה:יד-יז‬ ‫01.‬

‫6. שלחן ערוך חושן משפט קנו:ו‬

‫ירושלמי דמאי ג:ב‬

‫61.‬

‫רש"י ויקרא כה:יז‬

‫11.‬

‫רש"י ויקרא יט:יד‬

‫21.‬

‫שלחן ערוך חושן משפט שנט:א‬

‫71.‬

‫ספר החינוך מצוה שלח‬

‫31.‬

‫מש' סנהדרין כט.‬

‫81.‬

‫משלי יא:יג‬ ‫יומא ד:‬

‫91.‬ ‫02.‬ ‫פלא יועץ ערך אונאה‬ ‫41.‬

‫מאירי יומא ד:‬

‫12.‬

‫מסילת ישרים פרק יא‬

‫51.‬

‫שו"ת מהר"ם מרוטנברג )דפוס פראג( אלף‬

‫72.‬ ‫כב‬ ‫חרם שלא לראות בכתב חבירו ששולח לחבירו בלא‬ ‫ידיעתו אסור.‬ ‫שו"ת חתם סופר אהע"ז א:ג‬ ‫82.‬

‫שאלתות ס' כח‬

‫22.‬

‫שערי תשובה ג:רכה‬ ‫שו"ת הלכות קטנות א:רעו‬ ‫92.‬

‫32.‬

‫שו"ת חקקי לב יו"ד א:מט‬

‫03.‬

‫משלי כ:יט‬ ‫חפץ חיים הל' רכילות ח:ה‬

‫42.‬ ‫52.‬

‫שו"ת יהודה יעלה ס' שיט‬

‫62.‬

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