WILMAP: Colombia

LEGISLATION

Law No. 1143, July 4, 2007, approving the FTA between United States and Colombia
 
[The FTA agreement between Colombia and US was approved by Colombia and incorporated into the local legislation through  Law 1143/2007. However, the implementation of the law (and therefore the implementation of the FTA) is still pending. The Draft Law 241/2011 (see below) was the first attempt of implementing the FTA and only covered  liability exemptions for ISPs.]
 
Free Trade Agreement (FTA) between Colombia and the United Sates, signed on November 22, 2006 (Chapter 16, Intellectual Property Rights, Art. 16.11, 29. Limitations on Liability for Service Providers)
 
[This FTA has miscellaneous rules concerning IP Rights and ISP Liability, which resemble closely to the US DMCA provisions. However, the internal legislative proposals implementing the FTA and related intermediary liability provisions have been rejected by congress and regulation is still pending (see below).] [see also Free Trade Agreement USA - Colombia, ISP Side Letter (English version)]
 
Law No. 679, August 3, 2001, by which a statute is issued to prevent and counteract exploitation, pornography and child sex tourism, implementing Article 44 of the Constitution  
 
[Providers, servers, administrators and users of global information networks are prohibited to host on their own site: images, texts, documents or audiovisual files that direct or indirectly implicate sexual activities with minors; or pornographic material, especially images or videos, if there are indications that the persons photographed or filmed are minors; or there are links to websites that contain or distribute pornographic material relating to minors (art. 7). Providers, administrators, and users of global information networks are required to establish technical blocking measures to protect themselves or their children from unlawful, offensive or undesirable material's exposure (art. 8).] 
 
 
[This is a Community legislation covering Colombia, Ecuador, Peru and Bolivia. This decision does not specifically establish provisions regarding intermediary liability on the internet. However, Article 54 may find application in this context, where it states that “No authority or person, whether natural person or legal entity, may authorize the use of a work, performance, phonographic production or broadcast, or endorse his support to such use, if the user does not have the express prior authorization of the owner of the rights or his representative. In the event of non-compliance, that entity or person shall be jointly liable."]
 
 
[There are no provisions in the Copyright Act that expressly establish rules regarding intermediary liability on the internet.]
 
 
[Due to the fact that there is not special law concerning liability of intermediaries on the Internet, the general provisions established in the Civil Code apply to liability of intermediaries. The Colombian legal system does not have notions of contributory or vicarious liability similar to those established in the USA due to its civil law heritage that has different principles concerning third parties liability and tort. The general principle governing third party liability is provided in Article  2341 of the Colombian Civil Code. Article 2341 establishes the following main principle: "anyone that causes harm to other, shall indemnify". ]

BILLS AND LEGISLATIVE PROPOSALS

Statutory Draft Law No. 119 of 2013 – House of Representatives, October 8, 2013, by which a statute is issued to establish the deactivation of autocomplete function on Internet search engines as long as they make a pejorative and/or undermining reference of the rights of good name, honor, privacy and human dignity of individuals and entities, nationals or internationals, and establishes other provisions.
 
[This bill is currently under discussion. It prohibits the activation of the autocomplete function of search engines to do pejorative and/or undermining reference of the rights of good name, honor, human dignity and privacy of Internet users and non-users. After the promulgation of the law, existing search engines must exclude the pejorative references mentioned (art. 3).] 
 
Draft Law No. 241 of 2011 – Senate, April 4, 2011, by which a statute is issued to regulate copyright and related rights infringement liability on the Internet
 
[This bill was passed in 2011 before the Senate to implement the FTA between Colombia and USA. However, the bill was archived few months later, when it was evident that there was no political willingness to push it through. It featured liability exemptions for Internet Service Providers (art. 4), including mere conduit (art. 5), caching (art. 6), hosting (art. 7), information location tools (search tools, hyperlinks and directories; art. 8) exceptions, for infringements to copyright and related rights by third parties that take place through systems or networks controlled or operated by ISPs. Providers of such services will not be required to compensate damages and will not be consider liable as long as they meet the conditions according to the nature of the service provided. These conditions include expedited removal or access disablement as a consequence of a claimed or apparent infringement and the notification to the alleged infringer of the removal or access disablement (art. 9). ISPs are not required to supervise the information they transmit, store or refer, nor they have the obligation of actively seeking facts or circumstances indicating illegal activity (art. 3). As a preliminary remedy, right holders can request an ISP to terminate accounts of repeated infringers (art. 13).]

DECISIONS

Superior Courts

Constitutional Court, Gloria v. Casa Editorial El Tiempo, T-277/15, May 12, 2013
[defamation, liability, media outlets, search engines]
 
[Stating that when there is a favorable outcome for an individual in a proceeding—in this case Gloria was acquitted from charges of human trafficking—there is an obligation to update the information and make the outdated information unavailable through searches; however, this obligation would apply only to media outlets—el Tiempo in this instance—which should ensure, using available Internet tools, that search engines would be unable to find the article, while ordering Google to block an article linking an individual to human trafficking would amount to a form of prior censorship].
 
[defamation, liability, search engines]
 
[A newspaper published information regarding an allegedly sexually abused minor. The published information, which leaked from governmental institutions, almost revealed the minor's identity completely. The Court confirmed that, by making the information available on the Internet and make it retrivable through search engines, the privacy right of the minor was violated. As in the previous judgment T-040/13 (see below), the Court ruled that Google Colombia was not responsible for the information displayed through the search engine. Instead, liability was to be casted only upon the the newspaper, which collected, analyzed, processed and disseminated the information about the minor.]
 
Constitutional Court, Martínez vs. Google Colombia & El Tiempo publishing house, Judgment T-040/13, January 28, 2013 
[defamation, liability, search engines
 
[Court ruled a writ of amparo (“acción de tutela”) regarding the request of a citizen of eliminating an old newspaper article that connected him to a criminal organization and a former criminal process. The article was displayed on Google search engine and a newspaper website. The plaintiff claimed the violation of his fundamental rights of privacy, good name and honor. According to the Court, Google search engine had not published the information and, for that reason, it was not required to modify, correct, delete or supplement the information retrieved in a specific search]. 

OTHER RESOURCES

Redpatodos (civil society joint), Legal Comments on “Ley Lleras” Bill
Carlos Cortés (Karisma Foundation consultant), The Unresolved Debate in Colombia about Copyright Protection on the Internet. The case of ‘Lleras Law’ [Full text in Spanish] [Summary in English

CONTRIBUTORS

KARISMA FOUNDATON
Email: carobotero at karisma.org.co and lfguzman at karisma.org.co 
 
Jose Roberto Herrera
Partner, Herrera Díaz Abogados, Intellectual Property Law
Email: jose at herreradiaz.com

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