Imagine a radio and television system where there are no rules and no one supervising the people or the content broadcast through this audiovisual communication. This exercise may not require much effort on your part.
Now, imagine what it would be like to have radio and television stations subject to arbitrary state control, which disregards rights such as human dignity, freedom of belief, privacy, and the presumption of innocence.
Regulating audiovisual communication, that is, communication directed at the public through radio or television, regardless of the methods used to make it available to the public, is an urgent task, since the proper exercise of the rights of the person communicating depends on it, as well as the full enjoyment of the rights of those receiving the information, particularly children and adolescents, who, due to their vulnerable situation, deserve greater protection.
Every society that wants to be democratic, by virtue of respect for freedom of expression, must accept not only ideas or expressions that are pleasing, or those that are considered harmless, but also those that shock or disturb a part of the population.
It is interesting to note that by 1949, during the dictatorship, Law No. 1951 on the regulation of public shows and radio broadcasts had been enacted, which created the National Commission of Public Shows, from which it could be inferred that there was a vocation to regulate radio broadcasting and public shows.
However, we must not overlook the fact that while these provisions regulated a sensitive activity, one that touches citizens so closely and is largely responsible for their sociocultural development, it is no less true that this tool served to repress all pluralism, as it became an instrument of censorship for any idea contrary to the established regime.
Thus, this law prohibits the screening of films, national or foreign, in which “[…] artists recognized as communists or who tend to serve as propaganda for communist ideology” work.
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Regulation No. 824, for the operation of the National Commission of Public Entertainment and Radio Broadcasting, dated March 25, 1971, provides that radio and television broadcasts shall endeavor to avoid unhealthy and disruptive influences on the development of children and youth, respect social morality, human dignity, and family ties, elevate the cultural level of the people, preserve the identity, customs, and traditions of the people, exalt the values of Dominican nationality, and strengthen democratic beliefs. However, some of these objectives have not been achieved; others have been achieved only precariously.
It must be said that Regulation No. 824, which declares radio and television to be of public interest and outlines a series of measures intended to impact the way in which communication is carried out through audiovisual media, does not have the necessary legitimacy to regulate fundamental rights, and therefore a new regulatory framework for audiovisual communication is required, in line with a democratic state governed by the rule of law and in accordance with a modern constitutional system.
The continued existence of a text intended to protect the guarantees available to all persons is a sign of progress. Although it has certain shortcomings and discrimination, it still represents the only specialized instrument for establishing measures and resolving disputes in the field of audiovisual communication.
Among the contributions of this regime are the protection of children and language, the establishment of responsibility for the director of radio or television stations, the regulation of advertising, especially for health products and cosmetics, and the training of broadcasters, among other contributions.
It is worth noting that Law No. 6132 on the expression and dissemination of thought, dated December 15, 1962, remains a reference point for interpreting the liability regime in force in radio and television. It has been applied to the audiovisual field in the absence of a specialized legal provision adapted to this communication model.
This law establishes a regime called freedom-responsibility, which is summarized in Article 1, which states: "The expression of thought is free, unless it violates the honor of persons, social order, or public peace."
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Under the current state of our law, the only justifiable censorship is that relating to the protection of children; all audiovisual works intended for minors must be subject to a type of prior control, expressed in the evaluation and approval by the regulatory body before any dissemination.
With regard to other programming, screenings or broadcasts, liability only exists for any violations that may occur, without prejudice to the approvals granted to cinematographic works.
In these cases, the cascading or subsidiary liability regime provided for by Law No. 6132 has been used, which, given the absence or lack of legislation consistent with our constitutional system and our times, has come to remedy certain procedural gaps.
According to the provisions of Article 46 of Law No. 6132 on the Expression and Dissemination of Thought: “The following persons shall be liable as principal perpetrators of the penalties that constitute the repression of crimes committed through the press, in the order indicated below: 1.- The directors of publications or editors […]; 2.- In the absence of directors, substitutes or editors, the authors; 3.- In the absence of the authors, the printers; 4.- In the absence of the printers, the sellers, distributors, film exhibitors, announcers and poster posters […]” [1] .
Instead, the director of the publication could very well disassociate himself from the publications ordered by law, or from those of a commercial nature or paid spaces, as indicated in article 46, part in fine , of Law No. 6132 on the Expression and Dissemination of Thought: “[…] When the violation of this law is carried out through an advertisement, notice or paid publication, appearing in a publication or broadcast on radio or television [2], the author thereof shall be considered to be the natural person or the authorized representatives of the entity or corporation that ordered it, who shall incur the liability set forth in section 2 of this article [3] . Any advertisement that is not strictly commercial must be published or disseminated under the responsibility of a specific person.”
However, the liability regime applicable to the type of communication produced through radio and television must take into account very specific elements specific to the structure of audiovisual media, as well as the method of disseminating content, which is very different from that of the written press, a field of communication expressly regulated by Law No. 6132 on the expression and dissemination of thought.
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[1] The Supreme Court of Justice invoked and declared the unconstitutionality of this article in the case of Hipólito Mejía Domínguez v. Wilton Guerrero Dumé and Osvaldo Santana, on the pretext that it is contrary to freedom of expression and information, as well as to the principle of individual punishment. See SCJ, Presidency, April 17, 2013, No. 18-2013 -case Hipólito Mejía Domínguez v. Wilton Guerrero Dumé and Osvaldo Santana- online http://www.suprema.gov.do/PDF/Datos_Adjuntos_Sentencia_2010_3051.pdf [Accessed: April 17, 2013].
In France, for example, the Law of July 29, 1982, establishes liability for the director of the channel or broadcasting station as the principal perpetrator of the audiovisual infringement, provided that the incriminated message has been reviewed prior to its communication to the public or has been replayed by the author; failing that, for the author; and, failing that, for the producer.
In our country, the body designated to regulate radio activity is the National Commission of Public Shows and Radio, whose main mission is "[...] to prevent public shows and radio broadcasts from taking place in the Dominican Republic that offend morality, good customs, relations with friendly countries and in general that may be harmful to the principles and standards of the Dominican people" [1] .
The truth is that, with the passage of time and the lack of adequate reforms, this institution has become obsolete; it has been hungry for resources capable of responding to the concerns of a society often threatened by simply turning on the radio or television. This may seem like a dramatic position, but it is not unlikely.
The National Commission for Public Entertainment and Radio Broadcasting has been regulating certain activities, both public entertainment and the screening of cinematographic works in movie theaters, with only the latter being limited to audiovisual communication.
We have also observed actions aimed at correcting the discourse of songs, particularly those of the urban genre, due to alleged distortions of language and the use of morally offensive expressions.
Obviously, even though cultural policies and protection of our national identity, which includes language, must be drawn up, the expression of popular cultural reality, which tells us about its shortcomings, sufferings and desires, must not be disregarded.
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Regarding the use of offensive, discriminatory, degrading, or insulting terms or images, corrective measures or sanctions must be applied.
Indeed, there are mechanisms that allow artists to record songs with their preferred terminology, even if it is rejected by the regulatory body, provided that the musical production made available to the public contains a warning that its sale is prohibited to a specific consumer segment, generally minors.
Even internationally, we can mention cases of songs whose lyrics have been partially removed, without needing to be completely censored. Such is the case of the song "Fuck You" by English singer Lily Allen, in which the word "fuck" was removed; similarly, the song "I Want to Make You Wet" by American rapper Snoop Dogg, in which the word "wet" was replaced with "sweat."
At the local level, we could mention certain cases of musical themes that have been banned by the National Commission of Public Entertainment and Radio. Although there is a tendency to speak of censorship, or post-censorship, it is worth asking whether it is not more of a type of sanction, since censorship involves an element of arbitrariness that, in principle, is not characteristic of a sanction. Censorship is generally applicable; however, sanctions are imposed based on individual violations.
In the past, some songs were banned in our country, either for containing expressions that lent themselves to double meanings, as is the case with "La gotera de Juana" by Félix Del Rosario, or for containing political criticism, as is the case with "El tabaco" by Johnny Ventura.
It is worth remembering the merengue “El guardia con el tolete” (The guard with the baton), written by Enriquillo Sánchez - whose original title is “El zoo dominicano” (The Dominican Zoo), in which double meanings were used, and it was even banned - it is said - “[…] not because of the guard, but because of the baton.”
Johnny Ventura, a famous popular performer and composer, had some of his musical pieces banned by the National Commission of Public Entertainment and Radio, then headed by Doña Zaida Ginebra Viuda Lovatón, not precisely for using obscene language, but for allegedly inducing a double interpretation, which allegedly violated good morals.
Hence, in his merengue “Ley seca”, Johnny Ventura jokingly said: “This Christmas I want to drink and if Zaida is against it, what am I going to do?” , insinuating that the then president of the National Commission of Public Entertainments, Doña Zaida Ginebra, was against almost everything.
And so, we went from a regulation that opposed almost everything, to one that opposes almost nothing.
Our country is experiencing certain legislative difficulties in the area of audiovisual communication. Indeed, in 2007, former President Leonel Fernández appointed a commission to review and update current communications legislation. Consequently, draft bills were drafted regarding the press, radio, television, and the internet. Among these, we appreciate the draft bill for the general audiovisual and public entertainment law, which proposed the need to establish an autonomous National Audiovisual and Public Entertainment Council.
Indeed, this body will have very special functions that, although they affect telecommunications, differ from the powers assigned to the Dominican Telecommunications Institute (INDOTEL).
The telecommunications regulatory body, for example, has as its main functions the granting of licenses, authorizations, and concessions for the exploitation of the radio spectrum, the allocation of Hertzian frequencies, among others; this is based on the examination of certain technical and economic conditions that operators providing telephone, internet, radio, television, and cable services, or companies involved in the structure of communications networks, must meet.
On the other hand, audiovisual regulation requires a body to examine the quality of the content broadcast, determining the relevance of a programming proposal or existing program based on its content—that is, the expressions, sounds, or images broadcast for the purpose of informing, educating, or entertaining.
In this regard, the National Council of Audiovisuals and Public Entertainment must ensure that radio and television programs respect the ethics of information, the rules of cultural and political pluralism, production and broadcast quotas for national works , the rights of children and youth, women's rights, the proper use of language, the right to one's image, as well as other third-party rights. It must ensure that communicators embrace a new style of reporting and communicating, one that is less aggressive and more protective of human dignity. To this end, the regulatory body may supervise programming, rate programs, set schedules, and issue warnings, sanctions, or prohibit any broadcast that violates the law.
The truth is, we need a legal standard with greater protection criteria for individuals, one that establishes a body that is not perceived as an overseer or prosecutor, but rather as a regulatory and advisory body . This will allow us to leave behind regulations that have been so precarious for so long and position us to move toward an audiovisual industry that educates citizens.