The criminal liability of the director of the publication
By Gabriela Beltré Acosta
The written press is provided with a special regime of criminal liability enshrined in Article 46 of Law No. 6132 of December 15, 1962, on the Expression and Dissemination of Thought.
The aforementioned provision establishes a subsidiary, or "cascade," regime in which the director of the publication is designated as the principal perpetrator of any crimes committed by a journalist in the exercise of his or her profession while under his or her supervision. That is, the article establishes a scale of responsibility in which designated individuals are called one after the other, according to their rank, in the absence of a representative of the preceding rank.
In this regard, the aforementioned article 46 of Law No. 6132 provides that: " The following persons shall be liable, as principal authors of the penalties that constitute the repression of crimes and offenses committed through the press, in the order indicated below:
1. Directors of publications or editors, regardless of their professions or designations, and in the cases provided for in the second paragraph of article
4, the substitutes of the directors;
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 printers, sellers, distributors, film exhibitors, broadcasters and poster fixers.
In the cases provided for in the second paragraph of article 41, subsidiary liability shall fall on the persons referred to in paragraphs 2, 3, and 4 of this article as if there were no director of the publication. […]”.
In the field of audiovisual communication, the same regime of subsidiary liability would apply, except that since it is a different type of communication, it is customary for the director of the radio or television medium, as well as the producer of the broadcast or program, to be liable provided that the content has been subject to prior fixation or, alternatively, repeated on their own behalf.
In the Dominican Republic, even though there are known difficulties in formulating a draft of a general audiovisual and public shows law, we do not have regulations in accordance with this communication model. To date, the provisions of the aforementioned Law No. 6132 on the Expression and Dissemination of Thought, relating to the written press, as well as Law No. 1951 on the Regulation of Public Shows and Radio Broadcasts and creating the National Commission of Public Shows, dated March 7, 1949, have been applied indiscriminately.
Crimes and offenses committed through the press
For the purposes of the Law, "crimes and offenses committed through the press" are any allegation or accusation that involves an attack on the honor, reputation, or reputation of a person or a specific group of people, such as defamation and slander; or expressions that offend the authorities, incite violence, crime, or the disturbance of the peace.
public; the publication of false news, the disclosure of private or confidential information, or derogatory or discriminatory expressions uttered against a person or group because of their belonging to a particular ethnic group, nation, race, or religion.
Although these crimes committed through the press, as defined by Law No. 6132 on the Expression and Dissemination of Thought, require a moral element, that is, the intention or awareness of publishing a writing whose content is illicit, it is the publication of the writing that is the material and constitutive element of these offenses.
An exception to the principle of personality of punishment
This law, Law No. 6132, originates from the French law of July 29, 1881, known as the Press Law. In France, the country whose legal text we had to adopt in 1962, the subsidiary or "cascading" liability regime is still intact.
However, in our country, it has recently been invoked and declared unconstitutional by the Supreme Court of Justice 2 , under the pretext that it contradicts the content of Article 49.
of the Constitution of the Republic, which enshrines freedom of expression and information, as well as article 40.14, which reads as follows: “ No one is criminally responsible for the actions of another .”
Regarding the principle of the personality of the penalty, it would seem arbitrary to punish the director of a newspaper for the actions of a journalist, especially in times when we are witnessing an immense flow of information that would have difficulty passing through the sieve of the director of the publication in question, which requires a role of greater vigilance, or failing that, guidance, on his part.
Such presumption of responsibility would appear, at first glance, to be contrary to the constitutional principles of the personality of punishment and the presumption of innocence.
However, this regime, designed for the print media, is of interest in that it provides a guarantee for the aggrieved party against abuses originating in the print media.
Thus, the French law of 1881, and in turn, the Dominican law on the Expression and Dissemination of Thought, have placed upon the director of the publication a presumption of juris et de jure responsibility; an irrefutable presumption of law, which does not admit proof to the contrary.
It could be understood that a provision of this nature would violate the principle of presumption of innocence enshrined in Article 69.3 of the Dominican Constitution, since it places an incontestable presumption of guilt on the director of the publication, acting in bad faith.
It would then be worth asking about a possible limitation of this responsibility or presumption of guilt 3 , so that the director of the publication could eventually offer evidence.
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2222 SCJ, Presidency, April 17, 2013, No. 18-2013 -case Hipólito Mejía Domínguez v. Wilton Grerrero Dumé and Osvaldo Santana- online http://www.suprema.gov.do/PDF/Datos_Adjuntos_Sentencia_2010_3051.pdf [Accessed: April 17, 2013].
of the non-existence of the moral element of the press violation charged against him, through which his good faith can be verified, or the occurrence of an event beyond his control.
By way of illustration, common law provides for presumptions 4 under the Constitution, which are based on the need to ensure that the victim of harm receives legitimate redress, so that the burden of responsibility is placed on the strong and the weak are protected.
Thus, the common law of liability and the traditional principle that there could be no liability without regularly proven fault have ended up bowing down to this reality 5 .
Indeed, the Dominican Civil Code allows for delictual liability without proven fault, that is, liability by operation of law. This can give rise to juris tantum presumptions, which yield to contrary evidence, such as the liability of parents for damages caused by their minor children, or that of artisans for the acts of their apprentices (Art. 1384); or juris et de jure presumptions, irrefutable liability, without possible contrary evidence, namely, the liability of the principal for the acts of his preposé or commissioner (Art. 1384), the liability of persons for the acts of things under their care, for the acts of animals, machinery, or for the destruction of a building (Arts. 1385 and 1386) 6 .
Thus, even if it is argued that the criminal liability of the director of the publication, established in the first rank by article 46 of Law No. 6132, is contrary to the principle of presumption of innocence, the fact that this principle has a paradoxical character should not be ignored, since it is at the moment in which the person is accused of having committed a criminal offense or of being associated with its commission, when the law opens a guarantee that protects him from society 7 , it is precisely at this moment, when the rule of law demands respect for the presumption of innocence.
Thus, in accordance with the provisions of the aforementioned article, any reproduction of defamatory, insulting, degrading, discriminatory or other allegations, made public in a periodical document, engages the criminal liability of the director of the publication as the main author even when he is not the author of the incriminated expressions 8 .
Consequently, the director of the publication has the duty to monitor and examine everything that is included in it, since his responsibility is nothing other than the sanction for failure to comply with his duty to monitor and verify the information that appears in the newspaper, and he cannot claim that he was not aware of the news published, or that he could not oppose its publication.
It has even been invoked that " a publication director cannot be released from his responsibility without proving that he has given a formal order not to publish an article and that he resigned before the publication intervened " 9 .
Instead, the director of the publication could 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,
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3 DREYER, Emmanuel, Droit de l'information (Responsabilité pénale des médias), Litec, Paris, France, 2002, p.162-6. 4 V. Articles 1349-1350, 1384-1386 of the Civil Code. 5 V. JOSSERAND, Louis, Civil Law, Volume II, Vol.II, Ediciones Jurídicas Europa-America, Buenos Aires, Argentina, 1950, pp.378 et seq. 6 Except in cases of force majeure or fault of the victim. 7 DEVEDJIAN, P., “Les nouvelles censures de l'écrit et de l'image”, Colloque Presse – Liberté, PUF, 1999, p. 69. 8 Crim. July 6, 1993: Legipresse 1993, No. 105, I, p. 111. 9 Lyon, February 16, 1899: DP 1899.
"appeared in a publication 10 or broadcast on radio or television, 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 established in section 2 of this article 11. Any advertisement that is not strictly commercial must be published or broadcast under the responsibility of a specific person."
Other unexamined alternatives
The Supreme Court of Justice has declared Article 46 of Law No. 6132 on the Expression and Dissemination of Thought to be inconsistent with Articles 40.13 and 49 of the Dominican Constitution and, consequently, unconstitutional.
However, it could have been argued that the prosecution of the author of a document should not necessarily be subordinated to the prosecution of the director of the publication as the main author; hence, part of the French jurisprudence, when assessing the Press Law of 1881 - which served as our model - has stated on numerous occasions that " a journalist may be convicted as soon as the director of the publication has not been prosecuted " 12 , granting an alternative to the judge who does not understand the declaration of unconstitutionality of the legal provision that organizes the subsidiary regime of criminal liability of the media.
The Law also does not require that the prosecutions of the principal and accomplice of the press violation be carried out in the same act; likewise, the invalidity of one summons will not entail the invalidity of the other, nor could the dismissal of the prosecution against the director result in the dismissal of the prosecution against the accomplice. 13
Furthermore, Article 46 of the Law on the Expression and Dissemination of Thought does not establish the sole and ultimate responsibility of the director of the publication for the actions of any of the journalists or persons under his supervision.
It would be possible to directly pursue the journalist who signs or covers the news without having to indict the publication's editor, but the law warrants being more explicit on this matter.
Indeed, the author of the publication could be prosecuted and convicted as the principal perpetrator of the press crime, since the director of the publication has not been brought to trial, or is unknown, or difficult to identify.
However, when the editor is brought to trial and his editorial responsibility is proven, he cannot claim that he was unaware of the incriminated news.
This is so because the director of the publication is a figure who comes to safeguard the rights of citizens, as he is the one who oversees the editorial line of the publication, and even more so, he is the one who responds when the prosecution of the perpetrator of the crime becomes impossible.
This is why the law raises the possibility of prosecuting the director, and failing this, the author, and failing this, the printers; furthermore, Law No. 6132 in its article 47 leaves open the option - although not expressly - of prosecuting the author, even when the author is not brought into question.
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10 Our emphasis. 11 Refers to the authors. 12 Crim. 20 January 1987: Bull. Crim. No. 30; Crim. 3 March 1954. IV. 5; Crim. 2 July 1958: JCP 1992. IV. 2874; Crim. 16 July 1992: RS crim. 1993. 768, obs. Bouloc; Paris, 11 December 1919: DP 1921. 2. 16. 13 Our emphasis.
Director of the publication: "When directors or their substitutes, or editors, are brought into legal proceedings,14 the authors will be prosecuted as accomplices." That is to say, the law could implicitly contemplate situations in which, although the director is identifiable, he is not necessarily brought into legal proceedings, but rather only the author is prosecuted as responsible.
Despite this alternative we have proposed, it is worth highlighting that the publication director plays an essential role in the written communications company, and if he or she did not assume any type of editorial responsibility, we would be talking about a director whose role would be purely administrative, unrelated to the oversight or supervision of the publication.
This liability of the publication's director could eventually be limited to pecuniary compensation in the civil sphere, shared with the owner of the media outlet; however, under the current state of our law, the publication's director has not been able to escape the criminal liability established in Law No. 6132, arguing that he was not the one who published the matter. If one thing is clear, it is that every media outlet has an editorial policy to which its journalists must adhere.
This editorial line is determined by ethical, political, ideological, and legal principles that must be applied to journalistic activity. The journalist cannot claim prior censorship, since he has known and accepted the conditions of his employment at the media outlet, always having the option of violating the 15th conscience clause and founding his own media outlet at his own risk.
Thus, whether the publication's director or the author of the incriminated document, the person designated as responsible, or the person brought to trial by the victim of the violation, journalists and media outlets will have the immutable obligation to respect the rights of others and to maintain public order; since every right has limits, and the limits imposed by the Constitution and the laws on the exercise of the journalistic profession will not result in "self-censorship or conformism on the part of publications" 16 ; rather, they will promote an order of respect for public freedoms, as well as the responsible exercise of the right to information that contributes to the economic interests of media groups, but above all, that translates into well-being for citizens and advancement for our democracy.
We understand that the role of a publication director extends beyond the scope of a morning or afternoon editorial; they are the guarantor of internal order in a media outlet; they set the guidelines and guide journalists in the proper practice of their profession.
When newspaper editors understand their mission to convey to those under their responsibility the duty of prudence, the duty of diligence, the duty to provide truthful information, the specter of persecution for "exercising" their freedom of information will be over.
Thus, we will usher in a new era in which journalists report in accordance with the law and the ethics of the media they serve, since they are not only subjects of freedom, but are also obliged to fulfill certain duties intrinsic to the right to inform.