Telecommunications and internet access
i Internet and internet protocol regulation
As mentioned earlier in this chapter, Colombia’s telecommunications regulation operates on a general authorization basis. This means that almost all telecommunications services are subject to the same licensing and registration requirements, regardless of the specific services they provide.
However, depending on the specific services, certain special requirements must be followed. In the specific case of Internet providers, they are subject to obligations that do not generally apply to other services, such as website blocking requirements for websites presenting child pornography or websites of unauthorized online gambling operators, among others, which will be explained in detail below.
ii Universal service
Currently, the government, led by the Ministry of ICT, has ambitious plans to extend internet coverage and reach the last mile to remote areas that traditionally lack access to internet services. For this purpose, the National Council for Economic and Social Policy published the policy document CONPES 4079 dated 2022.13 it describes the extent of government intervention required to implement the following programs:
- ‘Improve affordability of internet access by connecting low-income households with affordable and sustainable rates, and low-income households with affordable and sustainable rates over time’; and
- ‘Increase the reach of internet connectivity through free and public community internet solutions’.
These programs are based on the fact that the regions of Orinoquia-Amazonia and the archipelago of San Andrés, Providencia and Santa Catalina are lacking in internet services, because those areas do not have the necessary coverage to provide the required quality of internet services. CRC.14
To improve Internet access, the ICT Fund of the Ministry of ICT will finance the monthly fee for fixed Internet access, as well as the social quota for the 5 Mbit/s Internet plan for each user.
The ICT Fund will also finance the provision of community Wi-Fi internet access in the aforementioned regions.
iii Limitations on Provision of Service
In principle, the prices that telecommunication service providers can charge users are not subject to regulation and there is free competition in the market. However, MHK has established certain price lists for specific services, which mainly apply to services to be provided between operators.
For example, the prices that telecommunication service providers and network providers may charge each other for sharing infrastructure for the provision of telecommunication services, or the prices charged to third parties seeking access to their network, are regulated by the MHK.
In this regard, there is a general obligation for telecommunications service providers in Colombia to interconnect their networks and allow access and use of their core facilities to other telecommunications operators who request it. This obligation applies only to ISPs licensed to offer radio spectrum for terrestrial mobile services. This general requirement seeks to ensure the general principles of non-discriminatory treatment, transparency, cost-based pricing as well as reasonable profits and the promotion of free and fair competition in the ICT sector.
iv Privacy and data security
When it comes to data protection, Colombia’s data protection regulations are structured as general regulations, meaning that they apply to the processing of personal data in general, regardless of the technology or economic sector. These rules are in accordance with Decision No. 897 of the Andean Community.15
In addition, Colombia’s data protection regulation is strictly consent-based. A data controller must obtain prior, express and informed consent from data subjects before collecting and processing their personal data. This consent must include a description of the processing to be carried out and the purposes of said processing. Therefore, consent for telecommunications service providers and network providers should cover all processing purposes related to the provision of services. The above is important because the Colombian regulation requires that processing be limited to strictly necessary purposes as far as possible, unless otherwise authorized by the data subject (ie processing for marketing purposes).
Please note that data controllers must retain evidence of this consent and be able to demonstrate to the competent authority that consent was given by each of the data subjects.
Only in special cases is this permission not required, for example, information requested by authorities performing their functions or by prior court order. The criminal law specifically related to telecommunications provides that telecommunications interceptions can only be conducted by Colombian prosecutors and require approval of the interception before a judge.
The Regulation also sets out certain requirements for sharing personal data with third parties, including, where applicable, subscribing to a data transfer or transfer agreement.16
Moreover, as mentioned above, some telecommunication service providers, such as Internet service providers, are subject to the obligation to block certain websites for websites that provide child pornography or websites of unauthorized online gambling operators.
Both Law No. 679 of 2001 and Decree No. 1078 of 2015 on the Prevention of Child Pornography stipulate that all persons may exploit, post, use, publish, distribute images, texts, documents, audio files , must prevent, block, combat and condemn illegal use. the creation of global information networks or telematic connections of any kind when used for the distribution of material that refers to pornographic or sexual activity of minors.
Article 126.96.36.199.1. Decree No. 1078 prohibits providers, servers, administrators and users of global information networks from hosting:
- images, texts, documents or audiovisual files that directly or indirectly involve children sexually on their website;
- if there are indications that the pornographic material on the site, especially the persons photographed or filmed in the form of pictures or videos, are children; and
- links on their site that contain or distribute pornographic material involving minors.
In the same line 188.8.131.52.2. that Decree obliges ISPs to:
- to report to the competent authorities any known criminal acts against minors, including the distribution of pornographic material related to minors;
- fights with all technical means against the distribution of pornographic material with the participation of minors;
- refrain from using global information networks to distribute illegal materials to minors; and
- establish technical blocking mechanisms so that users can protect themselves or their children from illegal, offensive or unwanted material related to minors.
In addition, ISPs must implement certain technical and administrative measures provided for in Articles 184.108.40.206.1 and 220.127.116.11.2. Decree No. 1078 of 2015.
Regarding unauthorized games of chance and games of chance, Article 38 of Law No. 643 of 2001 establishes that authorities such as the National Police and Coljuegos can order the blocking of internet-based games of chance and games of chance that do not meet all the necessary requirements. according to their operations. In particular, this includes internet-based games with the necessary concession agreement with Coljuegos.
In addition, some administrative bodies, including judges and courts, may order the blocking of certain pages in accordance with their faculty. For example, the SIC, as a consumer protection and data privacy authority, as part of administrative investigations and in exercising its statutory powers, has ordered telecommunications providers to block websites that violate applicable regulations on these matters.
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