The executive vice president of the Institutionality and Justice Foundation (Finjus)Servio Tulio Castaño Guzmán, established a critical and exhaustive position regarding the drafting of article 209 of the new Dominican Penal Code, scheduled to come into effect in August, which typifies the figure of the “extortive defamation”.
For the jurist, although the creation of this figure represents a laudable attempt to systematize and stop an undeniable criminological realitythe use of media and virtual platforms as blackmail tools, their current configuration raises alarming questions regarding the typicity, the proportionality of the sentences and their conformity with international human rights standards, which puts fundamental rights at risk.
Castaño Guzmán recognized that the legislative technique succeeds in separating the crime of the falsehood of the accusation, focusing the unjust on the motive of profit or coercion.
He argued that, with this, the legislator circumvents the debate on exceptio veritatis (demonstration of truth) and adopts a physiognomy similar to classic extortion, where the harmfulness lies in break the freedom of the victim in the face of the threat of public discredit.
Likewise, he stated that this premise finds valid international parallels, such as the article 312-10 of the French Penal Code or the historic “Curtin” case of the Supreme Court of Justice of the Argentine Nation, which established that freedom of the press is not a patent of marque for commit common crimes through words.
However, he warned that the virtues of the norm are canceled because of its serious dogmatic risks.
A double-edged sword: the omission of the public interest
The first major objection raised by Finjus is the deliberate omission of truthfulness or public interest as modulating elements.
Castano Guzman cited comparative law jurisprudence to demonstrate this regulatory gap; among them, that of the Constitutional Court of Colombiawhich has clearly determined that the revelation of a d cannot be equatedtruthful and publicly relevant information no matter how uncomfortable it may be with an attack on honor motivated purely by profit.
Likewise, he referred to the criteria of the European Court of Human Rights (in the case of Axel Springer AG v. Germany), which establishes that the contribution to a debate of general interest is the essential weighing criterion for resolve conflicts between the right to honor and freedom of expression.
Lacking a express clause that excludes illegality when pursuing a legitimate complaint, Castano Guzman warned that the article becomes an institutional danger.
Under the argument of pursuing a “purpose of making a profit”the journalist who seeks legal commercial gain derived from a news scoop could be criminalized, which would create a climate of fear that paralyzes citizen oversight and imposes indirect censorship contrary to article 13 of the American Convention on Human Rights.
The Finjus analysis called “frightening” the dissonance of sanctions compared to the legal tradition of civil law.
He indicated that the article 209 sets a base sentence of five to ten years in prison, which rises to a fixed range of ten years if two intervene or more people, without even requiring the formal constitution of a criminal association, which in his opinion places this figure on an extreme punitive horizon.
Castano Guzman compared this scenario with legislation in continental Europe. In Spain, for example, blackmail (article 171.2) is punishable by sentences of one to five years in prison; while in Italy, aggravated extortion (Article 629) rarely exceeds this threshold without the use of physical violence.
«The disproportion is patent and worrying: family integrity is protected and honor with a severity that exceeds the criminal protection of primary legal rights such as physical integrity in its basic types,” the jurist lashed out.
He explained that this punitive exacerbation will cause the call “paradox of panpenalism”: As sentences are perceived as inherently unfair, judges will be forced to make restrictive interpretations so extreme that they will end up generating impunity and causing the practical non-application of the law.
The danger of monetization and the digital environment
Another diffuse aspect of the law is the indeterminacy of the concept “benefit of any nature” within the digital ecosystem. Castaño Guzmán warned that, in the current logic of social networks and streaming platformsany critical content that goes viral generates, by default, an economic return or a reputational increase due to monetization and advertising guidelines.
If a prosecutor interprets this concept literally and strictly, there is a latent risk of penalize behaviors that are part of the mere professional exercise of the communicator. Although the norm declares to seek combat against “merchants of intimacy” —a figure regulated in Peru through Law no. 30096—, the formula chosen by the Dominican Congress ends up blurring the principle of strict legality.
Urgent call for reform
The vice president of Finjus emphasized that the current configuration of the article simultaneously violates the principles of typicity, material illegality and proportionality of the penalty.
He expressed that, to prevent a legitimate tool against extortion becomes a suffocation mechanism of critical thinking or extreme protection of artificially shielded reputations, is imposed an immediate legislative reform that restores the constitutional coherence of the Dominican regulatory system.
