Last week, we said that a person who defames another is not usually legally liable, but he is required b’dinei Shamayim to appease the person he defamed. But does that mean beis din is powerless in defamation cases? Is a defamed person allowed to go to civil court if he has no recourse in beis din? Rabbi Dayan answers these questions:
“An obligation b’dinei Shamayim doesn’t just mean an ethical responsibility. The Meiri indicates that it is a proper obligation, albeit non-enforceable, and writes that if the person doesn’t pay he becomes disqualified as a witness!
“Similarly, the Maharshal writes that some people maintain that beis din should verbally coerce the person to pay. He disagrees, however, writing that we simply inform him that he is required to pay b’dinei Shamayim [Pischei Choshen, Nezikin 3:39].
“When beis din had power over the community, they could excommunicate the offender or whip him until he appeased the victim as a time-necessitated enactment to thwart slanderers [Choshen Mishpat 420:38].
“Nowadays, beis din does not have that power, but some batei din will accept defamation cases that led to financial loss with the goal of achieving a compromise to appease the victim or of using their social influence to silence the slander.
“Some suggest that if there are secular laws against defamation, beis din can perhaps rule based on dina d’malchusa or communal enactment since the law is of social importance and not contrary to Torah values [see Ketzos 259:3].
“The Pri Hasadeh (4:40) was asked whether a person could sue a defamer in civil court who is liable b’dinei Shaymayim but refuses to pay. He replied that he is not allowed to since the defendant is not halachically culpable.
“The Shach (28:2) rules that when the obligation is only b’dinei Shamayim, if the plaintiff grabbed payment, we take it from him. Even according to the opinions that we do not take it from him, he is not allowed to grab payment, and he is certainly not allowed to sue in civil court. Even beis din cannot grant him permission to sue in civil court.
“Nonetheless, there are a few exceptions to this rule. If these conditions apply, suing in civil court could be permitted: The victim of the slander is subject to criminal charges based on the slander, and the only way to defend himself is to file a defamation lawsuit [see Tel Talpiot 67:188], or there is concern that the perpetrator will continue to defame, especially where it will cause a chillul Hashem, and the lawsuit is necessary to stop him [Piskei Din Yerushalayim 3:15].
“In any case,” concluded Rabbi Dayan, “the inability to sue in most cases does not lessen the severe sin of the one who defamed.”