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A: Dear Howard:
This is an interesting question, and since I have never written
a word of fiction in my life, I can't say I have ever thought
about it much before I got your email. So I consulted a friend
of mine, Dr. Jill Hammer, who is both a rabbinical student and
published poet and short-story writer, and she helped clarify
what the issues might be.
Jill suggested that a primary Jewish moral consideration to apply
in this case is halbanat panim, literally "whitening the face," but understood as doing something
which shames or embarrasses someone in public. For example, in
Pirke Avot we read that one should "cherish another's honor as one's own."
(Avot 2:15) Even more dramatically, a little later in the text,
Rabbi Elazar HaModai warns us that someone who shames another
in public has no share in the world to come! (Avot 3:15) The later
halachic texts pick up on these early statements and expound them
both legally and morally, really driving home the point that we
must be careful of each other's feelings.
A related idea which I think you might consider is lashon hara, the "evil tongue," which refers to a traditional prohibition
on gossip or spreading any kind of rumours about people behind
their backs. Lashon Hara is prohibited even if it is true, unless there is some danger
in not speaking the truth; any kind of information about others,
whether ostensibly damaging or seemingly benign, is prohibited
in the most strict understandings of the term.
Returning to your question about fiction writing, Jill agrees
with you that this is a common situation, and she thinks that
if so many details were changed that nobody but you would know
about whom you were writing, there wouldn't be any ethical problem.
I might add that psychiatrists and psychologists, who have very
strict rules of confidentiality, do this all the time when they
write about their clients in popular or professional media.
Thus, if you're going to portray somebody in a negative light,
I think it would be unethical to do so without taking precautions
to protect their honor and dignity- even if you think they deserve
it. (Not to mention the value of protecting yourself against lawsuits.)
If you write in such a way that only a few people, very close
to the situation, would recognize the person, then to me, it might
in fact be incumbent on you to seek the subject's permission;
after all, you might not know what other people know and what
they don't.
Where Jill and I might disagree is in the case where it's questionable
as to whether the person would be embarrassed, or even if the
fictional portrayal is a positive one. For example, in the latter
case, she thought there was no issue, and one could go ahead with
a positive portrayal of someone without feeling obliged to consult
them. Personally, I would probably err on the side of caution,
recalling that the prohibition on lashon hara applies even if it's good news or bad, even if it's something
true about a person- according to the strict interpretation, we
are simply not supposed to be spreading news about people behind
their backs.
Therefore, were I writing a story about someone, I might try to
seek their permission, reasoning that I didn't know how they would
react or what they considered a positive or negative portrayal.
Thus, in my opinion, if there were any question about someone's reaction, you'd certainly have to consult
them or change the details so the source couldn't be identified.
On the other hand, as you point out, if everybody always consulted
with the people they are writing about, there might be a lot less
fiction in the world, which is probably why Jill, who is an author,
was more willing to allow the writer some leeway in deciding what
the consequences of the story might be. As she put it, "people
don't own their character traits," and since writers get inspiration
from all different aspects of their lives, I imagine it might
be a burden to them to have to check each time they take inspiration
from someone.
Two more points to consider, one suggested by Jill and one suggested
by another rabbi with whom I was discussing this issue. Jill also
brought up the rabbinic idea of attributing one's sources, which
was a serious value in the ancient rabbinical academies. Someone
was always supposed to say from whom they learned a particular
teaching, and in fact the Talmud is full of statements like "Rabbi
X said in the name of Rabbi Y, who learned it from Rabbi Z..."
So I understand this tradition as implying that that if someone
inspires you to write something, you should somehow attribute
it to them- but that would be contrary to the idea of anonymity
to protect their honor as we discussed above.
Finally, Rabbi Litwin, here in Toronto, brought up the idea of
stealing with the following scenario: suppose you wrote a story
about someone you knew, and then went on to earn a lot of money
from book and the film rights and speaking appearances? Wouldn't
they deserve some of the money? If the answer is yes, then you
could argue that even in the case where the story won't make much
money, a person has a right to control their portrayal, and "owns"
their image, as it were- in which case I'd say you'd have to consult
them before publishing.
If you say no, that the person does not have a right to that money,
then I suppose you're presuming that it's only the artistic portrayal
of someone that is "valuable," and a person does not "own" the
right to control it, but rather the artist does. In that case,
you might adopt the more lenient view, that someone does not necessarily
have to consult before publishing.
Either perspective seems defensible to me, though as noted, I
personally would err on the side of caution. However, please bear
in mind that rabbinic ruminations about halacha and Jewish ethics
have no bearing on Canadian or American laws pertaining to publishing
and libel and things like that- you don't want to lose your share
in the world to come OR get sued! With careful consideration of
the ethical issues in any given case, I think you can keep your
share in the world to come and write powerful fiction inspired
by living people; to avoid lawsuits, talk to a lawyer.
NJL |
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