The laws of inheritance designate what must be done with the property of a person after their death. It deals primarily with financial aspects of the property, as well as other domains which are left over, for “when he dies, he can take none of it along; his goods cannot follow him down” (Tehillim 49:18).

Even before the digital revolution, but increasingly more afterwards, we find this issue regarding his correspondence, his intimate journals, and other domains of his private world. These were prohibited to explore and use while he was alive, and merit protection via the prohibition against slander, for “a slanderer goes about, revealing secrets”. They have also been granted unique protection throughout history, the most famous of which is the “Cherem of Rabbeinu Gershon”, where one of his chapters forbids violation of individual privacy.

Which of these are released after his death? Do these prohibitions obligate destroying all personal effects? Is it permissible to publish that which he did not choose to publish in his life? And in the modern era: what is the halachic and ethical status of his email account (the question applies whether there is proper policy for email servers in this matter and they block the email address when the information reaches them or the assumption that there is no policy such as this, and the account is not blocked, or it is possible to prevent its blockage)? What about the files on their computer? Do people have ownership over the internal aspects of their existence?

The discussion becomes much more complex, for in a large number of cases we are not only dealing with the relationship between the deceased and those responsible for his estate, since there are many ramifications for tertiary sources as well. For example, regarding letters that the deceased sent or received – their publication also affects the person of correspondence. What if the person has personal matters in their effects that recount stories about the family, at times not flattering?

Does halacha have a position on the matter?

It is difficult to find halachic sources for this topic, despite its relevance before the digital era. There are few halachic responsa on this (Rabbi Palachi, Chokekei Lev Responsa 1, Yoreh Deah 49), but they are also written in a deliberative fashion and the assumptions made are vulnerable to disproof. 

At first glance, it seems that due to the fact that the prohibition of Lashon Hara applies even to the deceased, expansion of “a slanderer goes about, revealing secrets” includes the obligation to immediate block their email account, avoid perusing their things, and not to publicize anything that he did not decide to publish while he was alive. A great treasure trove of letters, essays, journals, and other family matters will be lost, but this position holds that we have no choice, and the starting point is that all that one himself does not decide to publish –is prohibited to publish after his death, and this is the driving force to prohibit invasion of his privacy. One of the strongest sources which can act as a basis for this position is the words of the Gemara:

“From where do we know that [regarding] one who says something to his friend, [that he is prohibited from saying anything to anyone else] until he says to him: Go tell it? It is stated “and God spoke to him from the Tent of Meeting saying (=Lemor, a contraction of Lo Emor)” (Yoma 4b).

The Gemara learns that the default assumption is one is prohibited to publicize, as long as there is no explicit permission to do so, and the conclusion regarding the deceased seems like a more reasonable position. One should remember that the Chafetz Chaim related to this Gemara as moral imperative and not halachic, however it still acts as a guiding force.

A second possibility is a more moderate opinion, which holds that those who wish for the deceased’s wellbeing step into his shoes and are able to act based on an assumption similar to “we grant ownership to a person not in our presence” and grant him authority to publish different matters which would benefit the deceased. Understandably, this position on the one hand saves many works from being locked away, however it is practically problematic for two reasons: first is the need to decide what is “beneficial” (despite this being performed in many halachic categories such as conversion), primarily when the one receiving the benefit (the deceased) cannot express his opinion retroactively, as we find in many topics based on this premise. The second issue, as stated, is the obligation to take into account the potential victims, from the situation where the family member in charge of managing the estate might be exposed to lashon hara that the deceased wrote to themselves about family members that have come to light, to harm to other people who corresponded with the deceased.

Amongst the different possibilities I lean towards an intermediary approach. The starting point should be that one does not publicize, due to “a slanderer goes about, revealing secrets” even after death, and the Gemara in Yoma. However, when there is importance to these publications, there is room to publicize the matters when the following conditions are met:

1. It is not explicitly known to us that the deceased did not wish this publicized, and we assume that he did not publicize himself for simple reasons, such as lack of desire, overwhelming flow of information, the thought that it would not interest anyone, etc.
2. The matters contained within do not harm the deceased’s reputation, or the reputation and privacy of others who live amongst us.
3. They have importance, and we have a basis to estimate that due to their importance the deceased would agree to their publication.
4. The action is wholly done for the sake of Heaven, out of desire to add good into the world and best remember the deceased, similar to the conditions we find in “necessary lashon hara”, etc.