Volume 6, Number 18, Page 2
Colombia Approves New Electronic Commerce Law
Although entitled the Electronic Commerce Law (Ley de Comercio Electrónico), the new Law’s implications for Colombia go beyond those of regulating on-line transactions. In Colombia, paper, ink, signatures and seals are often seen as divinities without whose benediction it becomes impossible to realize any kind of transaction or legal process. Despite this traditional sense of doing business, Colombia has now become one of the few nations outside the European Union to approve specific legislation on the subject of electronic commerce.
This fact seems still more contradictory when one considers that a preliminary report of the Colombian Department of National Planning (Departmento de Planeación Nacional) contends that Colombia’s lack of advanced technology will actually work in its favor during the Y2K crisis. That is, modern computer technology has taken so long to establish itself in the country that most existing computer systems are new enough as to be Y2K compliant.
However, there are other statistics that place Colombia in a competitive position within the electronic marketplace. After Brazil and Mexico, whose sheer size practically assures their position as leaders of the Latin American market, Colombia consistently appears in third or fourth place in the struggle to secure the investment of the leading corporations of the technology sector, vying with Chile and Argentina.
In this sense, the new Law of Electronic Commerce is an effort to offer regulatory support to information technology corporations seeking to do business in Colombian and an effort to facilitate investment.
The Scope of the New Law
As stated above, although Law No. 527 of 1999 is known as the Law of Electronic Commerce, its potential effect on the Colombian marketplace reaches beyond on-line transactions. For example, the law grants the same legal recognition to electronic documents that traditional paper documents now enjoy and permits their admission into legal proceedings. In the same sense, digital signatures will now be considered legally equivalent to physical endorsements.
The law also regulates the transfer of merchandise purchased via an electronic transaction and dedicates a complete section to certification entities.
The Evolution of Law No. 527
In the process of developing the law, previous legal initiatives of the World Trade Organization as well as UNCITRAL were used as models. However, because the technology sector is constantly changing, it is likely that Colombia will continue to revise its new legislation as the exigencies of the marketplace require. Colombia’s willingness to adopt such cutting edge legislation speaks well of the government’s resolve to continue to maintain a modern legal infrastructure with regards to the electronic marketplace.
Summary of Important Aspects of the New Law of Electronic Commerce
Article 5
Recognition of electronic information. Judicial validity and resultant legal obligation will not be denied to any kind of document or other information for the sole reason that it is in electronic form.
Article 10
Admissibility and validity of electronic information. Electronic information will now be admissible as evidence and subject to the provisions of Chapter VII of Title XIII, Third Section, Second Book of the Civil Procedures Code. In no case shall evidentiary value or admissibility be compromised solely because the material at hand is in electronic format or an electronic representation of an original document.
Article 11
Criteria for evaluating the evidentiary value of an electronic document. In order to evaluate the evidentiary value of an electronic document the law provides that the standard rules of reasonable interpretation and other legally recognized criteria be applied. In this sense, the law provides that the following be considered: the reliability of the medium in which the evidence was generated or sent; the reliability of the format in which the information was saved in terms of preserving the integrity of the evidence; and the means by which the author or creator of the evidence has been identified as well as other pertinent factors.
Article 12
Conservation of electronic information. When the Law requires that certain documents, records or other information be preserved, the following conditions must be met.
- The information contained within an electronic document must remain accessible for future consultation.
- The material must be preserved in the format in which it was initially generated, sent and/or received or in a format able to demonstrably reproduce said information exactly as it was first generated, sent and/or received.
- Supplementary information pertaining to the material’s source, destination and date and time sent or received must be preserved in the same manner as the document or data itself.
Data or information such as programming code solely intended to facilitate the transmission or reception of electronic documents is not subject to the above requirements. Finally, physical documents such as paper records may now be converted and stored in any electronic format capable of guaranteeing their exact reproduction.
Certification Entities
Requirements for certification entities. Juridical persons both public and private, of foreign or domestic origin as well as chambers of commerce, may function as certification entities provided that they obtain an authorization from the Department of Industry and Commerce (Superintendencia de Industria y Comercio) and comply with the following requirements.
- Maintain the sufficient financial capability to provide the authorized services of a certification entity.
- Possess the capability and related technology necessary for generating digital signatures, the transmission of certificates affirming the authenticity of the same and the conservation of electronic information under the aforementioned provisions of the Law.
- Legal representatives and administrators may not be persons previously convicted of crimes resulting in incarceration, with the exception of certain political crimes or misdemeanors, or those who have been suspended or barred from the exercise of their profession for severe ethical violations. This prohibition shall remain in place for the same period of time as the legal or administrative penalty decreed by the applicable court or professional organization
Article 30
Activities of certification entities. Certification entities authorized by the Department of Industry and Commerce to provide services may engage in the following activities, among others.
- Issue certificates authenticating digital signatures of natural or juridical persons.
- Issue certificates to verify the integrity of the transmission of electronic information. For example, uniformity between the originally transmitted and received versions of an emailed document.
- Issue certificates in relation to persons possessing rights or obligations with respect to subsections f and g of Article 26 of the new Law.
- Offer or facilitate services for the creation of certified digital signatures.
- Offer or facilitate electronic registry services and chronological verification in the generation, transmission and reception of electronic information.
- Offer conservation and storage services for electronic information.
For the complete text of Law No. 527, see the InterAmSM Database.
Compiled and translated from Colombian news sources by the Editor.
