Government, technology and Covid-19 in Colombia

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Daniel Peña Valenzuela
Peña Mancero, Bogotá
danielp@pmabogados.co

This article describes some of the measures taken by the Colombian government which relate directly or indirectly to the use of technology to mitigate the impact of Covid-19. Colombia is a country of medium level economic development, with great social inequality and with technological dependence, which makes it interesting to compare the raft of measures taken and their effectiveness with those of other countries which face the same global challenge but which have greater economic development.

E-commerce

Covid-19 has been a catalyst for developments in the digital ecosystem in Colombia. Business resilience quickly adopted e-commerce to cope with government-decreed social isolation. Electronic commerce is an exception to the general prohibition of commercial activities and as such is subject to safety and hygiene protocols, limited to websites and platforms (not including social networks), as well as essential activities such as pharmacies and restaurants. The Colombian government has generated tax incentives for e-commerce such as exempting VAT payment for a limited time period.

Taking into account social inequality in terms of income and lack of internet access in certain areas, e-commerce was formerly regarded as an elitist activity. With the Covid-19 pandemic, however, there may be an overcrowding of activities by electronic means. Small businesses are increasing their online presence and even older adults have been forced to learn how to use e-commerce.

As a consequence of Covid-19, e-commerce has ceased being a private activity and become the focus of public policies.

Consumer protection

Consumers of electronics have been specifically protected since 2011 following the parameters of the Organisation of Economic Cooperation and Development (OECD). E-commerce providers’ information obligations have been expanded as well as withdrawal rights (derecho de retracto) and the reversal of electronic payments (reversion de pagos). In light of the Covid-19 pandemic, the refund term has been modified in cases of consumer withdrawal. In the case of airline tickets and tourist services, the term to return payments has been extended to a year, when it was previously only a month.

Digital public services

The Colombian government took advantage of the extraordinary Covid-19 measures to promote a decree on digital citizen services which allows developments in ‘digital identity’, as well as the project for a digital repository of citizen data as a digital folder (Carpeta Ciudadana). This will allow for the collection of data relating to taxes, health and procedures before government entities.

Data protection

In 2012, Colombia adopted a strict European-inspired model for the protection of personal data. It gives special protection to health data, requiring citizens’ specific authorisation as well as stipulating limits on the processing of personal information. Concerns have been raised about government and private sector apps for tracking those with Covid-19, as to whether the proper protection of data will be enforced and what will be its future use once the state of emergency ends.

Teleworking

Colombia has had pioneering teleworking regulation in Latin America for almost a decade, establishing clear rules regarding workers’ guarantees as well as the responsibility of employers to provide adequate means for the provision of remote work. Paradoxically, these strict rules have not been met due to the urgency of the pandemic and many companies having to resort to remote working as a temporary alternative with less regulation. In the event of social isolation being prolonged, companies must move to adopt the more strict terms and conditions.

Legislative activities

Unlike the government's work, which by virtue of two declarations of economic and social emergency based on the constitution has issued more than a hundred decrees under the force of law, the Colombian Congress (divided into two chambers – Senate and House of Representatives) has discussed the validity of virtual sessions. However, due to the nature of the debates and to guarantee the rights of minorities, it is considered that sessions must take place face-to-face.

Judicial activities

The Constitutional Court, the Supreme Court and the State Council have been able to function by electronic means but, in general, ordinary justice has interrupted the normal operation as well as the terms for filing actions. Criminal justice and Constitutional actions to protect fundamental rights (acción de tutela) have been processed. Colombia had been amending legislation and codes to incorporate the use of electronic media in judicial proceedings and accept day-to-day technological changes. A Digital Justice Plan is still pending, however, owing to lack of budget to deal with the digital files (Expediente Digital) and electronic versions of all the process documents.

Arbitral response

Arbitration centres in the main cities of Colombia, Bogotá and Medellín, had reformed their regulations so that they could carry out arbitration procedures by electronic means even before the Covid-19 pandemic. An arbitration law reform in 2012 inspired by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration also allowed for these practices. Consequently, the normal course of arbitration proceedings has not been affected by the pandemic, and the use of electronic media will probably be further strengthened for future use.

To summarise, technology has allowed Colombia’s authorities, businesses and civil society to react to Covid-19, but it can also be considered that future planning and prevention against exceptional events may allow for a more effective and appropriate response.