It’s A Steal
Forever 21 is the fifth-largest specialty retailer in the United States. It is known for its fashionable and trendy accessories, beauty products, home goods, and clothing for women, men and children.
The company is also a practitioner of something called “Dark Patterns,” a not-so-kosher method of marketing that is facing some legislation lately in the states of California and Washington and perhaps in other states to come as well.
For years, “Dark Patterns” have been using false and misleading tactics to steal money, to waste time, and to get consumers to give up personal data.
Examples abound. Forever 21 asks visitors to their website for permission to place cookies on their computer. But if the person does not want to do that, one must opt out of not one but many, many categories. Other companies have the consumer sign up for free trials, but after a week or a month, they automatically charge the customer forever, and it requires an enormous amount of time and patience to figure out how to cancel. Often an X to exit the screen is too small or otherwise impossible to see.
The new administration’s Federal Trade Commission is looking into creating consumer protection legislation on a federal level.
But according to Sara Morrison, a technology writer for Recode, “That legislation won’t be easy to write, either. The line between deliberate deception and legally urging a user to make a choice that materially benefits a company can be blurry.”
There is, however, a body of halachah that clearly prohibits it.
The prohibition is known as geneivas da’as, fooling or deceiving others in physical practice. The Gemara in Chullin (94a) cites Shmuel as saying that the prohibition applies to everyone.
The Gemara cites a beraisah which discusses four examples given by Rabbi Meir of things that are forbidden on account of the issue of geneivas da’as.
• It is forbidden to repeatedly invite someone to a meal when you know that he will refuse.
• It is forbidden to repeatedly offer gifts when you know that he will refuse.
• It is forbidden to appear to open a new barrel of wine (when one is actually opening it for a previous sale) unless one informs him of the real reason he has opened it. [The underlying issue is that the wine will not last as long now that the barrel is open and it is a big favor to the guest, much like opening a brand-new bottle of Blue Label would be nowadays].
• It is forbidden to offer someone oil from an empty flask to anoint oneself when one knows full well that the person will refuse it. If, however, he is offering the oil to show (others –Rashi) his fondness for the person it is permitted.
We see, therefore, that geneivas da’as is violated even if there is a non-financial deception.
Worse Than Lying
In regard to the verse of “midvar sheker tirchak,” stay away from a false matter,” there is a three-way debate as to how we understand this pasuk.
• The Chofetz Chaim rules in his Ahavas Chesed that there is an out-and-out prohibition to lie. This is in accordance with the view of some Rishonim.
• Other Rishonim hold that the verse is merely good advice, but not halachah.
• A third opinion holds that it is applicable to judges adjudicating law.
Generally speaking, the view of the Chofetz Chaim is normative halachah.
The prohibition of deceiving, however, is a clear prohibition according to all opinions. According to the Sefer Yereim and the Ritvah, it is a biblical prohibition. According to the Smak, the prohibition is d’rabbanan. But all hold that it is a full-blown prohibition.
Similar Case Of Geneivas Daas
The Mishnah in Bava Metzia (59b) tells us that it is forbidden to mix older produce with newer produce and sell them together as one package. The Gemara in Bava Metzia (60b) lists more cases where a seller makes animals and animal skins look newer through artificial means. These, too, are forbidden on account of gneivas da’as. While it is true that these cases in Bava Metzia are dealing with a sale, if we combine this with the beraisah in Chullin then we have a parallel.
Is It Biblical Or Rabbinic?
Does everyone agree to this? It would seem that it may well be a debate in the Rishonim. The Rashba in Chullin (94a) and the Rosh (Perek 18) hold that if the item is a matanah, a gift, there is no prohibition of geneivas da’as. Tosfos (Chullin 94b DHM “Amar”) and the Ritva (Chullin 94b “Rav Ashi”) hold that it does apply even regarding a free gift. How do we understand the distinction between the cases of the beraisah and the free gift according to those authorities who hold that it is not considered geneivas da’as? It would seem that since the deceiver is giving something to the person, that makes up a bit for the deception.
Other Applications Of Geneivas Daas
There are a number of other contemporary applications of this prohibition that apply according to all Rishonim. These applications apply across the board in numerous industries.
Sometimes a newsmagazine or paper will create a false headline to get the reader to read the story. This, too, is a violation of geneivas da’as. It also causes the reader to waste time, if that is not what he or she would have wanted to read. In the modern internet age or on Facebook, there is a mechanism called “clickbait.” Headlines are designed to lure the reader into clicking and reading. This is permitted as long as there is no geneivas da’as involved.
Phony Amazon Reviews
If a company produces a product, they may be tempted to write their own reviews and post them on Amazon. This, too, would clearly be a case of geneivas da’as. It falsely gives off the impression that there are more readers as well as falsely inflating the rate of satisfaction.
Falsely Reporting Internet Hits
There are websites and papers that falsely report their internet traffic or distribution. This is geneivas da’as, deceiving those who think that the site receives more visitors than it actually does, or deceiving its advertisers. Falsely inflating how many issues are printed is also geneivas da’as.
In the age of the internet, a number of people adopt other identities. While anonymity is permitted, when it is used to give off the impression that person X is really someone else, this is clear geneivas da’as. There are magazines and newspapers that do this as a matter of course, where letters to the editor are printed by an author of an article that he himself had penned.
There is a fascinating Sha’arei Teshuvah (3:181) which states that the leniency of “Mutar l’shanos mipnei haShalom, sometimes it is permitted to tell a white lie to maintain peace” does not apply to geneivas da’as. Geneivas da’as is an important and essential value in Torah Judaism. Whether it is cookies, clicks, inflating web hits, printing numbers, or using false e-mails to create wrong impressions, we must realize that it is a serious halachic issue that should not be ignored or trampled upon.
Oh, and there is one other issue regarding Forever 21 and halachah. Apparently, each of their carrier bags contains a verse from the Christian bible that states that one must believe in someone other than Hashem. Speak to your local rav or posek to determine if there are any halachic complications involved.
The author can be reached at Yairhoffman2@gmail.com. Read more of Rabbi Hoffman’s articles at 5TJT.com.