Data protection laws in Colombia
Colombia recognizes two fundamental personal data rights under Articles 15 and 20 of its Constitution: (1) the right to privacy and (2) the right to data rectification. Personal data processing is further regulated by two statutory laws and several decrees that set out data protection obligations.
Statutory Law 1266 of 2008 (Law 1266) regulates the processing of financial data, credit records and commercial information collected in Colombia or abroad. Law 1266 defines general terms on habeas data and establishes basic data processing principles, data subject rights, data controller obligations and specific rules for financial data.
Law 1266 defines the terms Data Subject, Data Source, User of Data and Data Operator, as follows:
- ‘Data Subject’ means the owner of the information;
- ‘Data Source’ means a person or entity who receives or collects the information in the context of a commercial relationship with the Data Subject and shares this information with the Data Operator;
- ‘User of Data’ means a person or entity who accesses databases and uses the information gathered by the Data Operator;
- ‘Data Operator’ means a person who manages a database with information provided by the Data Sources and shares it with Users of Data, under the rules provided by Law 1266. The most common example of a Data Operators is a Credit Bureau.
Law 1266 provides the applicable rules and conditions for Data Sources to share information with Data Operators and for such Data Operator to manage and share the information with Users of Data. Notwithstanding this, the Law privileges processing for purposes of managing financial, credit, commercial and services information, considering that this benefits the financial and credit activity as a public interest activity.
Law 1266 was amended by Law 2157 of 2021. The main modifications introduced by Law 2157 are the following:
- Data whose content refers to the time of default of an individual or a company, or data that refers to a lack of compliance with monetary obligations, shall be erased immediately or as promptly as possible. This erasure requirement applies mainly to small companies, small farmers, armed conflict victims, young people, women from rural areas, and other debtors who are in special situations, with the specificities foreseen in the Law.
- The obligation to update credit scores was created, provided that any negative data is erased.
- The Law established that the frequent consultation of a person’s credit history should not be a factor for lowering their credit rating.
- Claims and requests concerning the processing of financial data must be resolved within fifteen (15) working days from the date of receipt of the communication. If a prompt resolution is not given within this timeframe, the request is presumed accepted for all legal purposes.
- Financial data, credit records, and commercial information may not be used in making employment decisions.
- The Law introduced the principle of accountability for the processing of financial information. This update implies the Data Source and the Data Operator should adopt internal policies to guarantee the safety and confidentiality of the information.
Furthermore, Statutory Law 1581 of 2012 (Law 1581) regulates all personal data processing, as well as databases. Law 1581 defines special categories of personal data, including sensitive data and data collected from minors. Under the law a ‘Data Controller’ is a legal or natural person responsible for data treatment, or processing, and a ‘Data Processor’ is a legal or natural person in charge of personal data processing. The Data Controller creates databases on its own or in association with others, while the Data Processor processes personal data on behalf of the Data Controller. Nevertheless, an entity may be regarded as both Controller and Processor of personal data.
The law further regulates the obtention of authorization to treat personal data and the procedures for data processing. Moreover, the law creates the National Register of Data Bases (NRDB).
Law 1581 is applicable to all data collection and processing in Colombia, except data regulated under Law 1266 and certain other types of data or regulated industries. The law is further applicable in any case where a data processor or controller is required to apply Colombian law under international treaties.
Law 1581 does not regulate:
- Databases regulated under Law 1266;
- Personal or domestic databases;
- Databases aimed to protect and guarantee national security, prevent money laundering and terrorism financing;
- Intelligence and counter-intelligence agency databases;
- Databases with journalistic information and editorial content; and
- Databases regulated under Law 79 of 1993 (on population census).
Law 1581 further requires Data Controllers and Data Processors to guarantee that personal data: is maintained pursuant to strict security measures and confidentiality standards, will not be modified or disclosed without the data subject’s consent, and will only be used for purposes identified in a privacy policy or notice.
Decree 1377 of 2013 (Decree 1377), is a piece of secondary regulation related to Law 1581 which outlines requirements for personal and domestic databases regarding authorization of personal data usage and recollection, limitations to data processing, cross-border transfer of data bases and privacy warnings, among others. This Decree also requires controllers and processors to adopt a privacy policy and privacy notice.
Decree 886 of 2014 (Decree 886) and Decree 090 of 2018 (Decree 090) issued by the Ministry of Commerce, Industry and Tourism, regulate the National Register of Data Bases and sets deadlines for registration of existing data bases in Colombia.
Lastly, Title V of the Sole Circular issued by the Superintendence of Industry and Commerce provides additional guidelines regarding the following matters: (i) the processing of financial data, credit records and commercial information; (ii) the National Register of Data Bases and (iii) International Data Transfers.
