If Lashon Harah is a Character issue- not Issur - then Motivation is paramount not Actions

[update - finished translations] There are a number of critical differences whether lashon harah is primarily a moral issue or primarily an issur. Precise definitions are not needed for moral definitions - people recognize what is right and wrong. In contrast issur requires clear cut parameters and definitions. Perhaps even more important is that moral issues focus on motivation while issur is mainly concerned with the deed. If lashon harah is primarily moral, that would explain why a person who unwittingly said derogatory statements has not committed the sin of lashon harah. If a person speaks derogatory statements for a good purpose he is exempt. In contrast a person is not exempt from transgressing Shabbos or killing simply because he was not thinking of sinning. Rav Asher Weiss (Minchas Asher Vayikra 19:16) brings an example of exemption from the sin of lashon harah because there was no intent to harm.

    Mo''ed Koton (16a): Is it not a fact that R. Simeon, Rabbi's son, and Bar Kappara were once sitting rehearsing the lesson together when a difficulty arose about a certain passage and R. Simeon said to Bar Kappara, ‘This [matter] needs Rabbi [to explain it]’, and Bar Kappara replied: ‘And what forsooth can Rabbi [have to] say on this?’ He went and repeated it to his father, [at which] the latter was vexed, and [when] Bar Kappara next presented himself before Rabbi, he said: ‘Bar Kappara, I have never known you! He realized that he [Rabbi] had taken the matter to heart and submitted himself to the [disability of a] ‘reproof’ for thirty days.

Rashi (Mo'ed Koton 16a) says Rav Shimon repeated Bar Kappara's statement innocently to his father and not as loshon harrah. Rav Weiss says, "Rashi is saying that when one innocently states something without intent of saying something negative - then it is not considered as loshon harah. Thus it appears that the explanation for this is that even though lashon harah is a very serious sin - but it's basis is concern for character perfection. Therefore whatever is not said with a negative intent for another or to harm him - but is said innocently - is not considered a sin at all. It is not even considered shogeg. That is because the underlying principle of this sin is concern for imperfect character traits - and that is dependent on motivation. I give a similar explanation concerning the view of Ramban that the prohibition of fraudulent commercial transaction is only if it is intentionally fraudulent. 

"However Chofetz Chaim (Hilchos Lashon HaRah 7 in Be'er Mayim Chaim 18) says that in fact one is guilty of lashon harah when it is said innocently. The Chofetz Chaim explains that  Rashi doesn't mean that he said it without intent to harm but rather he was not paying attention to what he was saying. He notes that the Rambam(Hilchos Lashon Harah 7:4) poskens that even if one said lashon harah as a joke or as levity that he is guilty of lashon harah. However the Chofetz Chaim's explanation is problematic. Aside from the fact that the explanation does not fit with Rashi's words - it is difficult to accept the assertion that Bar Kapara sinned beshogeg and wasn't paying attention to what he was saying." 

"Furthermore the Rambam is understood by the Chofetz Chaim to mean that even when there is no intention of saying something negative it is still lashon harah. However the Rambam meant something different.  When a person makes a joke out of derogatory material it is still  the sin of lashon harah since his words are still inherently derogatory in themselves. It is the nature of jokes and levity to be abusive and thus he transgresses – even though he doesn't intend to degrade another person. In contrast concerning words that are not inherently derogatory in themselves – such as Bar Kapara – who only meant that Rabbi Yehuda wasn't in a position to know how to resolve this  particular question. In addition Rav Shimon when he repeated Bar Kapara's words to his father had not intended to convey anything negative about Bar Kapara but he was merely asking for a clarification. In such a case the prohibition of lashon harah is not violated since the information was said innocently and the words themselves were not inherently derogatory. Thus negative words said as a joke are different than ambiguous words which were said innocently and thus there is no support for the Chofetz Chaim from this Rambam.  In contrast a person who intends to hurt another transgresses the prohibition of lashon harah no matter what words he uses. This in my opinion is the proper understanding of Rashi and the fundamental principle of what constitutes lashon harah.

We see then that lashon harah is a concern of character and therefore the speaker's intent is critical in determining whether his words constitute lashon harah. With this principle we can understand the rule that whatever is spoken beneficially does not violate the prohibition of lashon harah – as stated by the Chofetz Chaim (Lashon Harah 3:3). In general we know that there are times when Torah prohibitions are set aside e.g., a positive commandment sets aside a negative one and more severe mitzvos displace lesser mitzvos etc. However this is different because lashon harah is not being displaced when the words are said beneficially. As we stated the prohibition of lashon harah is dependent upon whether it is a bad character trait. Therefore whenever the speaker's motivation is for the good and for benefit of his fellow man and not to hurt him – there is absolutely no issur of lashon harah. It is not that is is being displaced – it doesn't exist! If you examine the matter well it is clearly the correct explanation.

Additional support that lashon harah is primarily a prohibition of faulty character comes from the Chofetz Chaim. He writes that the heter to speak lashon harah for benefit only applies if the speaker doesn't intend to debase his fellow man – but if he means to speak negatively then it is prohibited even if is beneficial. He also writes that if he speaks negatively about a sinner and he himself is guilty of that sin – he does not have a heter to speak. These two halachos seem to contradict the principle that negative speech said for benefit is permitted because it isn't lashon harah. Why should it make a difference what the speaker's intent is and whether he is righteous or not? These apparent contraditions are removed if it accepted that the foundation of the prohibition of lashon harah is because of concern for the speaker's character. 

[Whether in fact motivation for saying something beneficial determines if there is a heter - involves the  machlokes of the Sma and Taz which will be discussed in another post]