Rabbi Meir Orlian
Rabbi Dayan welcomed Mr. Mann and Mr. Wolf into his office.
“What brings you here?” he asked them.
“Mr. Wolf sent me a computer virus as an e-mail attachment,” said Mr. Mann. “Supposedly, the file was a ‘helpful computer program,’ which he said to install. The file was a virus, though; when I clicked on it, it attacked my computer! Removing the virus and getting Windows to work again cost $250. I think that Mr. Wolf should pay for the repair.”
“Did you know that the file was a virus?” Rabbi Dayan asked Mr. Wolf.
“No,” replied Mr. Wolf. “I simply forwarded the e-mail without examining it.”
“Infecting a computer with a virus is considered doing damage,” said Rabbi Dayan. “However, there are two issues here that need to be clarified. To illustrate, let me share with you another question that came my way.”
The two men listened intently.
“A person put some poisoned food in front of his neighbor’s animal,” Rabbi Dayan said. “The animal ate the food and died. The owner sued the neighbor for killing his animal. What do you say about this case?”
“I would say he’s liable,” said Mr. Wolf. “He poisoned the animal.”
“I’m not so sure,” objected Mr. Mann. “The neighbor didn’t actually kill the animal. Although he put out the poison, the animal chose to eat the food.”
“Animals don’t exactly have choice,” reasoned Mr. Wolf. “If they see food, they eat! Anyway, even if the neighbor didn’t directly kill the animal, he certainly brought about the animal’s death.”
“But is that enough to hold him liable?” argued Mr. Mann. He turned to Rabbi Dayan.
“The Gemara (B.K. 47b; 56a) teaches that placing poison before an animal is considered grama,” answered Rabbi Dayan. “The animal did not have to eat the poisoned food. Therefore, the neighbor is not legally liable in beis din, but he is responsible b’dinei Shamayim. This means that he has a strong moral liability to pay, albeit not enforceable in beis din (Shach 386:23; 32:2).”
“I still don’t understand,” said Mr. Wolf. “Since the neighbor expects the animal to eat the poisoned food, why isn’t there a full legal liability?”
“The truth is, the Rosh indicates that the person is exempt only if it was unusual for the animal to eat,” explained Rabbi Dayan, “for example, if the poison was not regular food or if the animal overate. However, Tosafos indicates that even if the poison was mixed with regular food, since the animal brought the injury upon itself through its intended action of eating, we cannot obligate the person.”
“What does all this have to do with our case of a virus attachment?” asked Mr. Mann.
“In the typical case, e-mail viruses are not self-opening,” explained Rabbi Dayan. “Although Mr. Wolf sent you the computer virus, you had to click on it in order to activate the virus! Many contemporary authorities compare this to placing poison before the animal. Just as in the latter case, it is not possible to impose a legal liability because the animal chose to eat the food and brought the damage upon itself, so too, you chose to click on the file and thereby activate the virus.”
“So where does that leave us?” asked Mr. Wolf.
“Our case, similarly, is only one of grama, like placing poison before the animal,” said Rabbi Dayan. “Therefore, it is not possible to impose a legal liability on Mr. Wolf (see Mishpetei HaTorah, B.K. #67; Shimru Mishpat 2:71).”
“What about a chiyuv b’dinei Shamayim?” asked Mr. Mann.
“In addition to the fact that Mr. Wolf simply forwarded the e-mail with no nefarious intent, there is another factor to consider,” concluded Rabbi Dayan. “People nowadays are aware of computer viruses and of the need to be careful when opening attachment files, especially with .exe endings. An outdated or free version of anti-virus often does not provide full protection. Therefore, there was also an element of neglect on Mr. Mann’s part.
“Thus, in this case, Mr. Wolf would be exempt even b’dinei Shamayim.”