By: Nelson Remolina Angarita (23/XI/2016). nremolin@uniandes.edu.co** Text translated from Spanish to English by Luisa Ricaurte Espinosa, GECTI.

 

Recently there has emerged a cascade of news affirming that a bill revives the right to be forgotten. It is about the following initiative: Statutory Bill Number 91 of 2016 “in which the scope of application of Statutory Law 1581 of 2012 is modified and the Data Protection Authority is empowered to protect the rights of Colombians regarding the collection and international treatment of personal data “(published in la Gaceta del Congreso No. 608 of August 10, 2016).

Examples of the disseminated news are two published by the newspaper El Tiempo, namely: (i) The controversial right to be forgotten” (editorial of El Tiempo of 21/XI/ 2016), and (ii) “Controversy over the bill that seeks the right to be forgotten in networks “(note of 20/XI/2016).

I participated in the writing of the bill, reason why I will, very respectfully, state the following:

1. It is definitely indispensable that people read Bill 91 of 2016 together with the explanatory statement to verify that there is no mention of the right to be forgotten.

2. The project consists of 5 articles and its purpose is as follows: “The present law has the following purposes: (1) Protect people from the improper treatment of their personal data by those who are not resident or domiciled In the territory of the Republic of Colombia and (2) Allow the Colombian authorities to carry out investigations or any management, on its own motion or at the request of a party, in order to demand respect of the fundamental right to habeas data and the protection of personal data that are being treated by persons located or domiciled outside the territory of the Republic of Colombia” (Article 1). The project ensures the protection of all people in Colombia that have access to the Internet, that is to say, approximately 28.5 million people according to recent data.

3. Law 1581 of 2012 does not expressly enshrine the right to be forgotten. So, how will the Superintendencia de Industria y Comercio order to block information arguing the right to be forgotten if it does not exist in the aforementioned law? Notice that Article 6 of our Constitution orders that “individuals are only accountable to authorities for violating the Constitution and laws. Public servants are accountable for the same cause and for omission or excess in the exercise of their functions “(I emphasize).

4. Law 1581 of 2012 does not apply to “databases and archives of journalistic information and other editorial content” (Article 2 (d)). Therefore, the Superintendencia de Industria y Comercio cannot order temporary blocking of databases or web pages or editorial content. Notice that the power of article 21 (c) of the mentioned law applies only to databases not excluded in article 2 of the law.

The bill in no way extends the scope of application to the databases of journalistic information or other editorial media. The bill leaves intact the current exception of the field of application regarding the databases of journalistic information.

In short, the bill maintains the initial position of Law 1581 of 2012 of not intervene in the mentioned databases – journalistic information and other editorial content – thus respecting freedom of expression.

5. It goes without saying that Colombians have the right to receive “truthful and impartial” information (article 20 of the Constitution). But in front of a newspaper story, I do not think it is relevant to have a legal debate on the subject, but rather take up a reflection of an important journalist of our country who said: “Our commitment is responsibility, not infallibility. We can all make mistakes. We must try to avoid mistakes, but if we commit them we must publicly acknowledge them “(Daniel Coronell, La sencilla tarea del reportero,

Opinion Section, Revista Semana, 2016/01/30)

6. Freedom of expression and data protection are not incompatible. However, I insist, the bill is not about the right to be forgotten, but rather about the international collection of personal data. On this topic see:  ¿Qué hacer frente a la recolección internacional de datos personales?

7. Constructive criticism for the protection of human rights are welcome. But let’s analyze if what we want to protect are human rights or the business models of some companies. On this topic see: “Internet of Corporations” -IoC-: An Explanation of What Happens on the Internet and the Future of Human Rights Protection in Cyberspace (Part 1)”

Remember that the Internet is over regulated by foreign companies and many of them have as “corporate policy” or “business doctrine” to prevent the issuance of regulations that go against their business model. On the Internet, personal data is the currency of the digital economy. That is why it is not uncommon for some foreign companies to orchestrate strategies to block pro-citizen initiatives on data protection because they affect their business model.

 8. In the road of life we are temporarily teachers, entrepreneurs, activists or journalists, but we will always be Colombians. As such, we have the ethical duty to seek the best for Colombia and Colombians.

9. Extraterritoriality of data protection laws are necessary to effectively protect – or at least try- the rights of people on the Internet. The international data collector must be respectful of local human rights regulations – such as data protection – and not being domiciled in a certain country cannot become an argument or a motive to promote impunity and prevent effective protection of the rights of people on the Internet. In this sense, see: Normas sobre tratamiento de datos personales aplicables a responsables o encargados domiciliados en el extranjero

10. This is consistent with the jurisprudence of the Constitutional Court that states that “on the Internet, (…) there may be a virtual reality but this does not mean that the rights, in that context, share the same quality. On the contrary, they are not virtual: they are express guarantees that must be protected by the constitutional judge for its effective enjoyment in the so-called “cyberspace“. The Corporation stresses that “no one could claim that, because it is the Internet, users can suffer a reduction of their constitutional rights” (C-1147 of 2001).

11. The above opinions are strictly personal and not institutional. Therefore, they do not represent the opinion of the University of los Andes, but that of Nelson Remolina Angarita as a Colombian citizen.