TMT 2025

COLOMBIA Law and Practice Contributed by: Maria Carolina Pardo, Ciro Meza, Angélica Navarro and Carlos Ignacio Arboleda, Baker McKenzie

Data Privacy Liability Under Colombian data privacy regulations, the processing of personal information (eg, identify - ing data, images, etc) can only be carried out if the data subject concerned grants prior, express and informed consent. User-generated posts often include the personal data of other users, so it is important to ensure that due consent has been obtained from data subjects for the processing of their personal data – or more specifically, for the publishing of their information. Given that social media administrators, as website operators, process personal information posted by users, the con - sent requested by social media platforms should ideally include authorisation to process person - al data, and data subjects should be informed about the applicable privacy policy, including its limitations. In this regard, the Constitutional Court has emphasised the importance of pro - viding effective reclamation channels for users. The Colombian Data Privacy Regulation applies to any form of personal data processing that takes place in the Colombian territory. However, the definition of “processing” in this context has been expanded by the SIC to encompass processing through the use of cookies, apps and other similar means on devices in Colom - bia. Consequently, the Colombian Data Privacy Regulation applies regardless of whether the data controller or processor is domiciled abroad. 10.2 Regulatory and Compliance Issues In Colombia, the primary regulatory body over - seeing the use of social media is the SIC. The SIC is responsible for enforcing data protection laws, including those that apply to social media platforms. Additionally, the ITC Ministry plays a role in regulating the digital environment, includ - ing social media, by setting policies and guide -

• images or content that may lead to a crime being committed – this is considered a crimi - nal offence by the Colombian Criminal Code; • content that motivates, supports or promotes the publishing or exchange of child pornogra - phy; and • any type of work protected by IP law pub - lished without proper authorisation – publi - cation of such work on public sites may be considered an infringement of copyright and related rights. In these cases, the social media administrator is not held liable as long as they apply sound due diligence to prevent any future occurrences. Most cases only involve a request being made for information related to the posts of the users concerned. Constitutional Liability Fundamental rights are guaranteed and constitu - tionally protected, including non-discrimination and non-defamation. User-generated content may include discriminatory material (eg, in rela - tion to gender, race, political or religious beliefs or sexual orientation). In such scenarios, affect - ed individuals usually file constitutional actions to defend their fundamental rights, and website operators are usually the third parties in such proceedings. In most of these constitutional actions, there is no liability for website opera - tors as orders to take down content are usu - ally imposed on the individuals who published the inappropriate content; however, it is possi - ble that constitutional judges will directly order the social media owners to remove the relevant content. These decisions do not involve financial penalties, but rather only court orders to remove the offending content.

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