Shabbos Alert: Rainbow rubber band looms by Rabbi Yair Hoffman

5 Towns Jewish Times   Fifth grade Bais Yaakov girls and Gedolei HaPoskim in Hilchos Shabbos finally have something very much in common. Both are very much excited about the new rainbow looms – albeit for quite different reasons.  For the Poskim, finally after all these years, the esoteric malachos of Maisach, Ossei Shtei Batei Nirim, Oreg and Potzaya, have practical everyday application that people are actually doing.

But let’s step back a bit to describe the latest craze that has hit not only the Bais Yaakov’s but even the boys Yeshivos.  There are miniature weaving looms in which colorful rubber bands are fitted onto and the practitioners of this new pastime are now weaving colorful rubber band jewelry. [...]

The new craze presents both challenges and opportunity. The challenges can be divided into three categories.  We will go through each one.

THE FIRST CHALLENGE

One challenge is that entire cadres of young girls and boys are now unwittingly violating four of the most obscure Av malachos of Shabbos.

Maisach is setting up the loom.  In our case it is setting up the rubber bands on the plastic mini-loom.   Other Poskim hold that it is only when the loom is set up on the horizontal side that Maisach applies.  Regardless, Maisach will be violated when the new jewelry is being woven.

Oseh batei Nirin in the theory is the setting up of the loom itself.  The loom used in this modern manifestation works differently.  It does not have the back and forth pedals, but according to some of the explanations found in the Rishonim, the loom used would be a violation of Oseh Batein Nirim too.  Some Poskim hold that the violation of Osei Batei Nirim involves merely passing the strings through the weaving machine.

There is also the Malacha of Oreg which is the actual weaving.  This can be violated even without the loom.  The Rainbow Loom offers that possibility too.  Indeed, from the fact that there are so many combinations, each different pattern can be a different violation of the above three Av Malachos.

The fourth category of prohibited Malacha involving weaving is called Potzaya.  This can involve removing the woven item from the loom, or removing one of the bands from the total bracelet.

Some would like to argue that because the main material being used is made of rubber bands, that it is temporary and not a violation of the weaving Malachos.  However, most rishonim understand that temporary means less than 24 hours.  Experience shows that this is definitely not the case here. [...]

R Mendel Epstein arrested - suspicion of forcing get

update Washington Post   A judge in New Jersey has ordered two rabbis and eight associates held in federal custody after being accused of plotting to kidnap and torture a man to force him to grant a religious divorce. Rabbis Mendel Epstein and Martin Wolmark, four alleged enforcers and four other associates all appeared in federal court in Trenton on Thursday.
 ==================
CBS News  [FBI criminal charges]     [see also Washington Post]    [See Newsday article about alleged earlier case of torture]     Bedatz protests cattle prod divorces
  FBI agents raided several locations overnight in an investigation into a series of violent crimes against Orthodox Jewish men involved in religious divorces from their wives, according to CBS New York.

Mendel Epstein, Martin Wolmark, Ariel Potash and Fnu Lnu were reportedly arrested after the FBI raided Yeshiva Shaarei Torah in Suffern, N.Y., the home of a rabbi in Brooklyn and at least one more location in New Jersey.

The station reports a criminal complaint says the women who wanted to divorce their husbands would hire "tough guys," with approval from rabbis, to beat up their husbands and force them to consent them to divorce. Ten other people were also taken into custody, according to the station.[...]

An undercover investigation by the FBI, Wolmark linked the undercover agents to Epstein in New Jersey. Epstein allegedly said in a conversation, "Basically what were are going to be doing is kidnapping a guy for a couple of hours and beating him up and torturing him and then getting him to give the 'get.'"

He said the they would hire "tough guys" who would use "electric cattle prods, karate, handcuffs and place plastic bags over the heads of husbands."

Authorities reportedly said Epstein commits a kidnapping every year to year and a half.

The kidnapping would cost $10,000 for the approval of a rabbi and $60,000 to $70,000 for the "tough guys" they would hire. 

Lnu and Potash would reportedly assist Epstein in the kidnappings.[...]

BHOL    See below link for similar arrests in Monsey and New Jersey

הקהילה החרדית בארה"ב בתדהמה: סוכני הבולשת הפדרלית פשטו אתמול (ד), על בתיהם ובתי הכנסת של שני רבנים, האחד במונסי והשני בברוקלין.

הבולשת פשטה תחילה על ביתו של הדיין הרה"ג מנדל אפשטיין.

סוכני הבולשת הגיעו לביתו של הרב בשכונת פלטבוש ובו זמנית גם לבית מדרשו, ערכו חיפושים ועצרו אותו.

הרב הובל כשהוא אזוק באזיקים לניידת והוא נלקח לחקירה.

שעה לאחר מכן פשטו סוכני הבולשת הפדרלית על ביתו ובית מדרשו של הרב אשר וולמארק מראשי ישיבת שערי תורה במונסי.

דובר הבולשת בניו-יורק אישר כי נגד השניים מתנהלת מזה זמן חקירה, וכי בתום החקירה הוחלט לבצע את המעצרים.

בנוסף הוסיף ואמר, כי הרבנים מואשמים בסחיטה והלבנת כספים. לפי דיווחים בעיתונות המקומית החשדות קשורים להתארגנות שעסקה במאבק נגד סרבני גיטין

 lohud   MONSEY — The FBI descended late Wednesday on Yeshiva Shaarei Torah in connection with an investigation into a gang that pressured men into giving their wives religious divorces, a law enforcement source told The Journal News..

Yeshivah embroiled in fresh abuse scandal

Australian Jewish News    YESHIVAH College in Melbourne has been dragged further into the mire of child sex abuse scandal, with an alleged victim, who claims he was repeatedly raped by a longstanding employee of the school, breaking his silence this week.

The alleged abuses happened some time ago, though The AJN has opted not to publish the dates as to conceal the identities of the victim and the alleged perpetrator, who remains in close contact with children at the school today.

The man, who was eight, or nine when the alleged incidents took place, claims he was lured to the college’s shul with the promise of chocolates and raped on the bimah “in front of the sefer torah”. He also claims he was also forced to perform oral sex and believes there to be at least one more victim of the alleged pedophile. [...]

Greek PM refuses to wear kippa when laying wreath at Yad Vashem ceremony - so what?

YNET   An upsetting diplomatic mishap overshadowed the visit of Greek Prime Minister Antonis Samaras in Israel: Greece's PM refused to wear a yarmulke (kippa) at a memorial service for Holocaust victims that took place at the Yizkor tent (Hall of Remembrance) at Yad Vashem on Tuesday.

The ceremony's organizers urged Samaras to honor the occasion. When he was offered to put on a hat instead of a yarmulke, he still declined, and finally laid a wreath bareheaded.[..]

It is rare for distinguished foreign guests to take such a stance: Nevertheless, in 2005, Turkish Prime Minister Erdogan acted in a similar manner. Former French President Jacques Chirac also refused to wear a yarmulke, however settled for a hat.[...]

Whistleblower consequences: Psychologist who helped unveil Penn State abuse scandal - loses contract with school

AOL    The lasting pain the reported victims of Jerry Sandusky, convicted sex offender and former Penn State assistant football coach face will take a long time to end, if it ever does. Sexual assault on children is a crime and sin that never vanishes. Sometimes that's even true for the people who try to stop it.

Michael Gillum, the Clinton County, PA, psychologist who was one of the people crucial in uncovering the story -- and critical of the local high school's response to the crisis -- had been told earlier this year that his official contract with the county wouldn't be renewed, as USA Today reported. But, the paper also reported that Central Mountain High School was coming under new investigation by the Pennsylvania Attorney General's office.

Gillum had worked with Aaron Fisher, a student at the high school where Sandusky was a volunteer football coach, during the four years of the prosecution process. Fisher was known as "Victim 1" because his was the first of the allegations of eventually ten victims that led to prosecution, according to CNN. Fisher said that Sandusky forced him into sex acts more than 20 times between 2006 and 2008. However, the accusations resulted in so much bullying that he had to leave Central Mountain High School, according to the Patriot-News.[...]

Abuse: Court rules parents have right to spank child for discipline

SFGATE    Santa Clara County woman who spanked her 12-year-old daughter in the rear with a wooden spoon should not have been labeled a child abuser, said a state appeals court Tuesday, ruling that social workers and judges must consider a parent's right to impose "reasonable discipline" on a child.

The Sixth District Court of Appeal in San Jose stopped short of deciding whether Veronica Gonzalez had acted reasonably and legally when she swatted her daughter several times in 2010, hard enough to leave bruises, after the child stopped doing most of her schoolwork and lied to her parents.

But the court said the Santa Clara County Department of Social Services had violated Gonzalez's rights by disregarding parents' authority to discipline their children and refusing to allow testimony by the daughter, who disputed many of the social worker's accusations against her mother. The court said the department must either hold a new hearing or dismiss the case.

Neither the department nor the Superior Court judge who upheld its finding that Gonzalez had abused her daughter gave "any weight to the right of a parent to impose reasonable discipline on his or her child," Presiding Justice Conrad Rushing said in the 3-0 ruling, published as a precedent for trial courts statewide.

Although beating a child may amount to abuse, Rushing said, it depends on the circumstances, including whether the parent intended to inflict bruises. No evidence was introduced showing that Gonzalez intended her daughter to be bruised, Rushing said.[...]

Dismissing the Rabbi by Rabbi Yair Hoffman

Five Towns Jewish Times    “How could you have voted against renewing the Rabbi’s contract? He visited my mother when she was in the hospital and took such good care of her! She adored him.  He buried your father!  He Bar Mitzvahed all three of the kids.  Husband, have you no shame?”

“Yes dear, but the other shul is growing more and more popular.  If our shul will continue to survive we need to bring in someone younger, and more dynamic.”

Invariably, the above conversation has taken place in one form or another all over the country, throughout the centuries, and across continents.  Jews, however, have always turned to Halacha for guidance in all matters.  Is there then halachic guidance about renewing the contracts of our providers of halachic guidance? [...]

THE ARUCH HASHULCHAN

But things are not always what they seem.

The Aruch HaShulchan writes (YD 245:29) that even though the Rabbi was only hired by the town for a certain number of years, nonetheless, they may never fire him.

There are some Poskim (Ohel Moshe CM 26) who understand that this is the intent of the Ramah, since Part II B of the Ramah seems to contradict Part II A.   How so?  Part B seems to clearly be addressing a city where the custom is to allow hiring for specific periods of time.  If so, what is this further qualification?

These Poskim state that the new Rabbi may not take over the income-producing aspects of the job that the previous person had.  He may, however, take new ones (see Ohel Moshe). [...]

THREE COUNTER ARGUMENTS

But does he have no leg to stand on whatsoever?  Aside from some untoward or unseemly activity on the part of the pulpit Rabbi, is there no other manner in which he can be dismissed?

There may be an alternative method to resolving the seemingly contradicting clauses in the Ramah.  It could be that the Ramah is saying in Part IIB that even though the congregation has accepted upon themselves this lower status of a Rav, one with only a set time – do not think that this can give others license to come into town and compete with the Rav in any manner.  He is still considered to be a full-fledged Rabbi – notwithstanding the fact that there is a set limit to his term.  Thus far, however, this author has not found any of the Achronim that read the Ramah in this manner.

One can also make an argument that the Aruch HaShulchan and the position of the other Achronim were discussing the situation in Europe where the prevailing Minhag may have been never to discontinue with a Rav even if one had contracted for a set period of years.  Here in America, one can perhaps argue that the prevailing custom is to follow contract law and, sometimes to not renew the contract.  So it could very well be that things are different in America.

Finally, we find that Rav Shternbuch (Teshuvos v’Hanhagos Vol. II #722) does make a qualitative distinction between a Rabbi who takes the mantle of Psak Halacha on his shoulders and teaches Torah to the masses (as has been the role of a Rav in Israel from generation to generation) and a Rabbi whose main purpose is to speak at funerals, weddings, Bar Mitzvahs and in shul on the Shabbos and holidays.  Rav Shternbuch writes that it should be comparable to the citation of the Yerushalmi “Av Beis Din she’sarach ain moridin oso – An Av Bais Din who stumbled – we do not forcibly remove him.”  He writes that the Rabbi must be somewhat comparable to an Av Bais Din in terms of his ability to rule.

Nonetheless, he concludes that even in the case of someone who does not fit into that definition per se, should be treated with respect and not be dismissed until he finds some other suitable and respectable position.

Whatever the case may be, they should come to a mutually acceptable accord, for all three reasons mentioned above – that leadership should continue in Israel, that it is something belonging to another that cannot be taken away and that we only lift up things in matters of Kedusha and we do not lower. a

Abuse:Training bystanders "not to stand idly by the blood of another person"

We have repeated reported incidents of abuse, identified perpetrators and enablers and we have spent many hours discussing  the halacha and hashkofic issues. We have also wondered why people aren't doing something about the problem.

The most obvious answer for inactivity is that bystanders really don't know how to respond i.e., what is the appropriate things to do when  witnessing or hearing about abuse.  In fact this reluctance for bystanders to intervene is known in psychology as the Bystander Effect. This concept was used to explain a report of a woman who was brutally attacked for 30 minutes and then murdered while 38 neighbors were watching from the windows - and they were said to have done nothing.

Psychologists concluded that to the degree a person feels that it is his personal responsibility to do something he will act. If it can be rationalized that someone else should or will take care of it - people become very passive. It is also important that the bystander know what to do.

Bystanders realistically worry about themselves regarding the embarrassment, the halacha of mesira and lashon harah, the concern for lawsuits, possible retaliation, loss of job etc etc. It really is easier just to look away and pretend you didn't see or hear something.

[update clarification to concern's comment] In our community there is already support for an accused molester. 1) proclaim he was innocent 2) claim that anyone who said otherwise was a moser in short - it was a reactionary position of do nothing against an accused perpetrator and allow nothing to be done. the alleged perpetrator is always protected. The guilt or innocence is not the question for them - it is that there is a high wall to prevent action to be taken against an accused molester and they reinforced that wall

What I am proposing is to focus on protecting the victim. At the present the issue of arvus and tochacha don't get involved because the molester is never guilty. The focus on protecting the accused molester has a much stronger base in society than those who want to help the victim. The potential protectors of the victim are the bystanders to the crime.

I think it is time to institute a program in our communities to teach two things. 1) There is an individual responsibility to act to protect others. 2) How to effectively intervene when someone witnesses not only sexual abuse but bullying of any time. The following describes one such program used in universities which trains bystanders how to intervene to stop and report abuse.

Those who are interested in organizing such a program please contact me

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Yale University   All sophomores will be required to complete a 75-minute bystander intervention training as part of an ongoing effort to improve the campus sexual climate, according to a Wednesday email to the class of 2015 from Yale College Dean Mary Miller and Assistant Dean of Student Affairs Melanie Boyd ’90.

Over 90 workshop sessions on strategies for preventing sexual misconduct as a third party will be held from Jan. 31 to Feb. 3. The program will be run in small groups of 14 or 15 students, and each group will be led by student communication and consent educators in an effort to establish a conversational setting, Boyd said. The curriculum of the training consists of a video showing a hypothetically harmful scenario, an overview of the ideas behind bystander intervention and group discussions about applicable situations.

“This is a fairly new area in sexual violence prevention,” Boyd told the News. “Preliminary research at other universities is showing that bystander intervention training can produce dramatic drops of sexual violence on campus, as well as improving the climate overall.”

In contrast to traditional prevention programs that target potential victims or perpetrators, bystander intervention will teach students methods to respond to instances of sexual misconduct as third-party community members, Boyd said. Sexual assault tends to unfold through fairly standardized two-person interactions, according to studies, but the introduction of a third party quickly disrupts the original power dynamic and can prevent potential sexual misconduct, Boyd said. The program aims to encourage students’ tendencies to intervene in harmful situations and to shift the broader mindset of the campus community, rather than emphasizing the promotion of new content, she added.

The entire sophomore class will be trained because bystander intervention is most effective at a community level, Boyd said. Training of sophomores will round out existing workshops given to freshmen, which educate them about the dynamics of sexual pressure, and leadership training workshops geared toward juniors and seniors. The added sophomore workshops are part of an effort to structure the University’s sexual awareness programs more effectively, with bystander trainings a “middle ground” between the existing approaches for students in other classes. [...]

10 % of American teens admit perpetrating sexual violence

LA Times   Nearly 1 in 10 young Americans between ages 14 and 21 acknowledges having perpetrated an act of sexual violence at least once, and 4% of a nationally representative sample of American kids reported attempting or completing rape, a new study finds.

While those most likely to report initiating unwanted sexual contact in their early to mid-teens were boys, girls were among the perpetrators as the age of respondents increased. Latino and African American youths, and those from low-income families, were less likely to have coerced another person to engage in sex than were whites and those from higher-income families, the study found.

And among perpetrators of sexual violence, consumption of X-rated materials -- specifically those depicting physical harm in the context of sex -- was notably more common than it was among youths who did not report efforts to coerce or force someone else to engage in sex.

The research, published Monday in the journal JAMA Pediatrics, appears to be first to gauge how widespread sexual violence is among Americans of high-school and college age. It was based on surveys conducted between October 2010 and March 2012 with 1,058 people ages 14 to 21 who participated in a broader longitudinal study called "Growing Up With Media." [...]

The authors said that the rarity with which perpetrators either are caught or assume responsibility for their actions underscores the importance of "bystander" training and intervention in U.S. high schools and colleges. Such training emphasizes the responsibility of peers not only to discourage and prevent negative behavior within their group or community, but also to recognize, stop or report such behavior when they witness it. Widely used in anti-bullying campaigns, bystander intervention is now gaining ground on college campuses as a means of reducing sexual violence. [...]

Serious halachic deterioration in the Weiss-Dodelson divorce battle

[my brother just updated his letter below 10/07/13] I recently received the following letter regarding new developments in the Weiss Dodelson divorce battle. It first notes a significant deterioration in regards to the elementary halachic issues that in a case of ma'os alei - the husband can not be pressured to give a get.

The second item is that the Dodelson family has finally organized their defense and is apparently no longer relying on nonsense fluff pieces in the Jewish Week as they have in the past.see commentary on the Jewish Week article

If beis din has determined that the wife has clear justification for wanting a divorce - such as abuse - then pressure such as embarrassment can be applied according to some poskim. Apparently in this case there has not been a ruling of beis din that  this is more than a case of ma'os alei.

See the following links for background

kol_koreh_-_april_30 against Weiss

2012/06/ora-rally-against-weiss-chareidi  
2013/03/weiss-dodelson-case-rejection-of-rosh.
2013/02/weiss-dodelson-response-to-attack-from
2012/07/weiss-family-statement-supporting
2012/06/r-avrahom-meir-weiss-bitul-seruv
==Ma'os alei - if wife simply doesn't want  to remain married - no pressure is allowed====
 Rav Eliashiv Ma'os Alei Kovetz teshuvos 1 174

See Rav Eliashiv - original teshuva from Piskei Din vol 2 (curtesy of Rav Michael Tzadok)


Rav Eliashiv  maos alei  - get not required (translation)
Rav Ovadia Yosef maus alei forced only if disgusting
Rav Ovadia Yosef - ma'os alei without factors such as abuse - is not forced
Rabbeinu Yonah-maus-alei-mitzva and Rav Ovadia Yosef - additional factors
Rav Sternbuch  - ma'os alei without factors such as abuse - is not forced
Rav Sternbuch moredes without clear reason plus went to secular court
=============================================

R Daniel,

2 things.

1) a friend who lives in that area tells me that the Dodelson's neighbors and shul community, apparently tired that there is still no movement on the Get front, staged an impromptu protest when Weiss came to pick up his child on Yom Tov. I'm told that Although there was no violence, Weiss fled, having apparently never had to face this kind of reception head on. This seems to have energized the protesters who are now thinking of different ways to apparently accost Weiss in public, making him more uncomfortable- seeing that just yelling at him in front of other people absolutely has an effect. My friend says that one of the members of the shul, while not especially close to the Dodelson's, having tagged along to this protest, said that he now sees as his mission making sure Weiss can not walk in the street with any menucha.

2) He forwards me this link: http://www.setgitalfree.com/refuting-the-weiss-statement.html as the Dodelson's response to the Weiss statement. While he has no answer why they hadn't shared this information earlier, the content seems very compelling.

In response to the above letter my brother has written the following. [letter updated 10/8/13]

===================================

   LETTER_TWO Protest Rosh Yeshivas Cheshvon 5774 MOUS OLEI

Another alleged Melbourne Yeshivah perpetrator – a current teacher

Tzedek     We are now in a position to release publicly the following limited information.

Some time ago serious allegations against a current teacher within the Yeshivah College in Melbourne were made and a formal statement has been given to the police. There is an ongoing investigation currently underway. This abuse is alleged to have happened some time ago.

We urge other victims from Yeshivah (past and present) to come forward as this may assist in this case. We similarly urge anyone with information regarding abuse (or cover-up) within Yeshivah to come forward. Of course we encourage anyone with information regarding any other cases of abuse/cover-up to also come forward. You may contact Tzedek for support, guidance or assistance. You may also contact the police directly.

We would like to emphasise that while we have identified the institution involved in this alleged case, the community should refrain from speculating and/or accusing anyone. The right thing to do is to come forward with credible information so that justice may prevail and for our children to be safer. The main reasons we have decided to make this allegation public is because this:

(a) alleged perpetrator is currently teaching children;

(b) institution has a significant record of employing perpetrators/alleged perpetrators (some of whom have already been convicted) and covering up abuse; and

(c) may cause additional victims (or other people with information) to come forward (this has been the trend until now).

Enough! No more silence.

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]

Lashon harah can be false according to Chazal:Sde Chemed

The Sde Chemed below shows that both true and false derogatory statements are also called lashon harah by Chazal. In contrast the Rambam and others say that lashon harah is true while false statements are called motzi shem rah. This  lack of concern for precise definitions by Chazal seems to imply that  they were primarily concerned with stopping harmful speech - rather than defining its parameters as they did for violating Shabbos or stealing (I have mentioned this issue in previous posts 1 ). This focus on the moral imperative rather than the legal dimensions might also explain why the even the Rambam was not careful in formulating the definition of rechilus according to the Kesef Mishna and Chofetz Chaim. It also explains why there was no Shulchan Aruch of the issur of lashon harah/rechilus before the Choftez Chaim.

   Sde Chemed Lashon Harah Lamed 63 

Are online mugshot sites extortion/lashon harah?

NY Times    [...] But once he is done, Mr. Birnbaum’s record will be clean. Which means that by the time he graduates from the University of Texas at Austin, he can start his working life without taint.

At least in the eyes of the law. In the eyes of anyone who searches for Mr. Birnbaum online, the taint could last a very long time. That’s because the mug shot from his arrest is posted on a handful of for-profit Web sites, with names like Mugshots, BustedMugshots and JustMugshots. These companies routinely show up high in Google searches; a week ago, the top four results for “Maxwell Birnbaum” were mug-shot sites. 

The ostensible point of these sites is to give the public a quick way to glean the unsavory history of a neighbor, a potential date or anyone else. That sounds civic-minded, until you consider one way most of these sites make money: by charging a fee to remove the image. That fee can be anywhere from $30 to $400, or even higher. Pay up, in other words, and the picture is deleted, at least from the site that was paid. 

To Mr. Birnbaum, and millions of other Americans now captured on one or more of these sites, this sounds like extortion. Mug shots are merely artifacts of an arrest, not proof of a conviction, and many people whose images are now on display were never found guilty, or the charges against them were dropped. But these pictures can cause serious reputational damage, as Mr. Birnbaum learned in his sophomore year, when he applied to be an intern for a state representative in Austin. Mr. Birnbaum heard about the job through a friend.“The assistant to this state rep called my friend back and said, ‘We’d like to hire him, but we Google every potential employee, and the first thing that came up when we searched for Maxwell was a mug shot for a drug arrest,’ ” Mr. Birnbaum said. “I know what I did was wrong, and I understand the punishment,” he continued. “But these Web sites are punishing me, and because I don’t have the money it would take to get my photo off them all, there is nothing I can do about it.” [...]