The Online Regulation Series | Colombia

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With a growing internet penetration rate (69%) and an increasing number of active social media users (35 million, at a growth rate of 11% between 2019 and 2020), the online space in Colombia remains governed by the principle of net neutrality.

This principle is considered in Article 56 of Law 1450 of 2011, which serves as a framework for the guarantees and responsibilities of the states towards its citizens. In effect, the principle of net neutrality in Colombia provides the basis for justifying the non-discrimination of online content and services, and has been invoked by the Ministry of Information and Communication to justify the non-blocking of apps in the country. As a result, only child sexual abuse material is considered to be illegal online content under Colombian law, and it is systematically blocked in the country.

However, a decision made in December 2019 by the Colombian Supreme Court could significantly change the country’s online landscape. Ruling on the protection of a person’s reputation online, the Supreme Court stated that blog operators could face legal liability if they failed to adopt proper moderation mechanisms for the comments published on their sites and online forums. These mechanisms should also include systems to identify the author of a post, thus lifting the possibility of online anonymity.

This decision by the supreme court has been criticised by civil society organisations, including the Fundación Para la Libertad de Prensa (FLIP, Foundation for the freedom of the press), which in its 2019 report on the state of the internet, El Internet que Nadie Querie, underlined that this decision was one amongst other legislative proposals that were leaning towards a more restrictive online space, and presented risks for online freedom of expression. With regard to the Supreme Court Decision of December 2019, the FLIP noted that: “The decision is dangerous for freedom of expression since, by holding the media or blog operators responsible for what is published by their users, an incentive is created for those to excessively restrict comments or completely eliminate these sections for fear of eventual legal consequences.” ^[1]

In this same report, the FLIP shows a trend for more stringent online regulation in Colombia demonstrated by different legislative proposals, made between 2012 and 2019, that would have substantially limited freedom expression on the internet – and in some occasions failed to meet the Constitutional standards requirements in place in Colombia. Amongst the proposals underlined by FLIP, is bill 176/19 – presented in 2019 – which aimed at regulating the use of social media platforms. The proposed bill planned on doing so by requesting written consent to publish any type of information or data about a person (including photograph or video). The proposal also included provisions on the prohibition of insults, and on preventing people from “overexposing” their own privacy, or from accessing “inappropriate content” online – without defining such content.

[1] “La decisión es peligrosa para la libertad de expresión ya que, al hacer a los medios u operadores de blogs responsables de lo publicado por sus usuarios, se crea un incentivo para que aquellos restrinjan en exceso los comentarios o eliminen completamente estas secciones por temor a eventuales consecuencias legales.”

Resources

Freedom House (2020), Freedom on the Net: Colombia.

Fundación Para la Libertad de Prensa (2019), El internet que nadie quiere.

Henshaw Alexis (2020), Online extremism in Latin America – An Overview, GNET.

Henshaw Alexis (2020), Extremist responses to covid-19 in Latin America, GNET.

Legis Ambito Juridico (2019), Operadores de blogs pueden ser civilmente responsables por contenidos difamatorios.

Wired (2020), What is Net Neutrality? The Complete WIRED guide.