Jorge Alejandro
Ocampo Giraldo

c) Certify for any procedure before the financial system and entities of the Colombian government, the companies assigned to this industry, owners, partners, shareholders, employees, contractors or

d) Monitor and require companies in the sector, in accordance with compliance with the good commercial practices provided for in the Commercial Code, and at the same time inform the government entities or competent authorities about the inconsistencies or faults found so that they can be sanctioned accordingly. to Colombian legislation.

Monitor and report to the competent authorities any person who uses minors in the provision of this service, consumes, distributes or manufactures drugs prohibited by law, animal abuse, illegal hiring of foreign personnel, illegal collection or transaction of money. ; or carry out any conduct that could be classified as a crime of human trafficking, threatening the life, integrity and human rights of people.

f) Ensure compliance with labor standards among people who are in the workplace.

activity and report its omission to the corresponding authorities.

Within this compliance, workers and companies that provide the service object of this law will be required to comply with affiliation to the comprehensive social security system, for which the administering entities must have the mechanism for their due incorporation.

Therefore, they must guarantee that the models who carry out webcam activity contribute adequately to the social security system independently, or the companies do so in accordance with the type of employment contract that the models have.

g) It will have the power to group and supervise other entities related to the adult entertainment sector in order to serve as a support body for the Colombian government, control and surveillance, allowing national economic development with standards of quality and human dignity. .

h) The others that regulate the legal norms for this type of entities.

Article 4. The legal or natural person that carries out the activity of electronic commercial service and adult entertainment through the webcam system must comply with the following requirements:

a) Certificate from the Chamber of Commerce

b) Single Tax Registry (RUT)

c) Concept of land use according to the activities established in this same law. d) Certificate from SAYCO and ACINPRO

e) Certificate of compliance with the health standards of the establishment where the stage or production studio operates issued by the local health secretariat or authority

f) Certificate of compliance with the safety standards of the establishment where the facility operates.

Scenario or production study issued by firefighters or competent authority.

g) Certificate of operation issued annually by the union federation

electronics for adults – FENCEA.

h) Enter into a contract with a cleaning company for the collection of hazardous and similar waste (sanitary route).

i) Others established by law and regulatory standards.

Article 5. The use of land intended for the electronic commerce service for adults through the webcam system is understood as an activity of exporting content for adults and not entertainment or high impact as established in article 83 of the law. 1801 of July 29, 2016, taking into account that they are not establishments open to the public and there is no sale of liquor, goods or services in person since the provision of their service generates entertainment and impact abroad as it is a commercial activity. export of services.

PARAGRAPH: Municipal administrations must treat any other industry or commercial activity for land use purposes in accordance with the corresponding territorial planning instrument: Territorial Planning Plan – POT, Basic Territorial Planning Plan – PBOT or Territorial Planning Scheme – EOT .

Article 6. The national government, through the competent entities, will regulate what corresponds to the purpose of this law and what is necessary for the normal functioning of the activity and service established in this regulation; as well as the inspection, surveillance and control mechanisms that, from a Human Rights approach, guarantee the development of the e-commerce activity and service for adults through the webcam system under principles of human dignity and freedom, and promote the prevention, care, assistance and protection of victims and potential victims of human trafficking and support in the stages of investigation, prosecution and punishment of human traffickers, in accordance with the provisions of Decree 1066 of 2015

As of the entry into force of this Law and during the following six (6) months, commercial establishments that are operating as production studios with content for webcam pages must comply with the provisions of this law, otherwise they will be sanctioned. as established by the corresponding regulations.

Article 7. Commercial economic activities are understood to be those derived from the export of web camera services according to the ISIC classification as follows:

Natural or legal persons who have electronic commerce activities for adults and at the same time hire personnel for the development of the export of services under the mandate established in article 1262 of the Commercial Code, will be classified with the ISIC code 4610 COMMERCE. WHOLESALE. MAJOR IN EXCHANGE OF REMUNERATION OR BY CONTRACT,

PARAGRAPH: Banks or financial entities supervised by the financial superintendency may establish policies for natural or legal persons that provide electronic commerce services for adults, to determine the legality and traceability of their operations, establishing income amounts for the monetization of currencies, control models such as SARLAFT, prevention of money laundering and non-financing of terrorism; guarantee the adult e-commerce industry the monetization of foreign currency in Colombian territory, and promote the economic development of the country.

Article 8. Legal entities that, through a mandate contract, are responsible for billing and monetizing in Colombia the money resulting from the export of services performed by models or production studios, will also have the status of exporters for tax purposes by supporting models to the execution of their work since the services are provided in the same way to webcam platforms or pages abroad.

Article 9. For tax purposes, natural or legal persons that provide electronic commerce services for adults will be subject to the withholding rate at source as income from services.

Article 10. This law comes into force upon its promulgation.

STATEMENT OF MOTIVES

OBJECT

The purpose of this law is to regulate the electronic entertainment service for adults through the webcam system in accordance with the provisions of article 73 of Law 2010 of 2019 and the tax regulations that have been ordered for this sector, establishing the due control. and surveillance in all its components, including the conditions of dignity and well-being of the models.

SUMMARY OF THE DRAFT LAW

The Bill has 10 articles in which the object of the initiative is developed, the definitions of the sector to which the Bill is directed, the organizational regime of the adult webcam industry, the requirements for the operation of establishments in this environment. commercial, the implementation of technological means to combat bad practices, some commercial and financial provisions of those who carry out the activity, and the working conditions and respect for human dignity for the development of the activities.

PROJECT BACKGROUND

The regulatory framework is part of article 73 of Law 2010 of 2019, which ordered the regulation of the sector by Law; and in this sense, the following Bills have been presented in the Congress of the Republic in both the Senate and the House of Representatives and have been archived.

Bill 302 of 2020 Senate, with the purpose of “developing article 73 of Law 2010 of 2019, which orders the issuance of a law that regulates the electronic commerce service for adults through the webcam system due to the tax regulations that have been ordered for this sector.»

Bill 056 of 2021 Senate, with the objective of “regulating and establishing a regulatory framework for the provision of electronic commerce service for adults through the webcam system, and in this way comply with the provisions of article 73 of Law 2010 of 2019 that mandates the regulation of the sector by law.»

House Bill 254 of 2021, in order to regulate the hiring of models through the webcam system, and regulates the federation of electronic commerce for adults.

AUTHOR’S CONSIDERATIONS

This Bill is based on the protection of the Electronic Commerce Industry for Adults in Colombia, so that it is identified and recognized as an industry related to the activity of exporting services, which is actually its tax status at present. , without generating stigmatization and social exclusion for being an unconventional activity, having as a fundamental factor the free right to work, protected by article 25 of the Political Constitution of Colombia and article 23 of the Universal Declaration of Human Rights of 1948.

Said regulatory body expressly specifies that work is a right and a social obligation and enjoys special protection from the State in all its forms, stating that everyone has the right to work under fair conditions and the right to freely choose their work under equitable and satisfactory conditions. . In the same way, every person has the right without any discrimination to equal pay, not to mention that every Colombian must have a remuneration that allows them to support their family and their human dignity, where the Electronic Commerce Industry for Adults is directly contributing to these. . principles established in the Political Constitution and the Universal Declaration of Human Rights.

According to Industry statistics in Colombia, it is estimated that in 2022 sales in the country will exceed US$600 million annually, which represents close to $80,000 million pesos in income to the country from the payment of taxes. (Forbes, June 7, 2022). It can be determined that approximately 90% of income is monetized through the free market, which was regulated by Resolution No. 16469 of the Council of State through which service exporters are protected from the use of this means. However, a good part of the payment operators manage their accounts from tax havens, causing the Colombian State to lose control over these resources.

It is also important to keep in mind that this means of monetization has been adopted by the vast majority of companies linked to the adult e-commerce industry, since, according to the experience of different entrepreneurs in the industry, it seems that the financial sector has closed them down. their doors, arguing that they are not target clients, and that the exercise of this type of activity can lend itself to money laundering; which can undoubtedly occur in any sector of the economy, so it does not represent a determining factor for its reporting by the financial sector.

As a solution to this situation and as a guarantee for the financial sector, the adult electronic commerce federation can serve as a control and regulatory entity within the industry to guarantee that income coming from abroad is of legal origin and in accordance with the object of causality with the commercial activity carried out; In turn, this Federation must be monitored by government entities such as the UIAF (Financial Analysis and Information Unit), SIGIN specifically by the Computer Crimes and Assets Unit, and the SIC (Superintendency of Industry and Commerce), the above with the objective of guaranteeing the State and the financial sector (National Banks) total tranquility, transparency and control of resources coming from abroad.

I RELEVANCE OF THE INDUSTRY

Within the framework of the COVID-19 pandemic economy, the world economy suffered stagnation, which meant that governments and societies around the world had to face new challenges to reactivate it, guaranteeing the growth of productivity, the expansion of demand aggregate and of course the generation of employment.

In this framework, and of course in the midst of an economy and a labor market that still suffers from a significant gender footprint, as pointed out by the Latin American Observatory of Human Rights and Business of the Externado University of Colombia (2022) when referring to In the electronic entertainment activity for adults, about 90% of the models are women and only 5% are men; However, and given this characteristic of the industry, it is necessary to regulate this activity, which has had exponential growth in recent years, reaching estimates of income generation and linkage to approximately between 100,000 and 300,000 models in the country (La República, February 27, 2023).

Likewise, as El Tiempo explains, since 2020 Colombia has become the largest supplier of webcam models behind Romania, our country occupying close to 33% of the industry worldwide (March 31, 2020). Currently, the Webcam Industry develops its commercial activity in the main cities of Colombian territory such as Bogotá, Medellín, Cali, Cartagena, Santa Marta, Barranquilla, Ibagué, Bucaramanga, Cúcuta, Valledupar, Villavicencio, Armenia and Pereira.

In this framework, the industry has been gaining significant relevance and has strengthened in the post-COVID-19 pandemic economy, as has generally happened with the virtual and technological business models that have generated decisive growth in economic development since that other sectors had and have had to do without their employees, and even nearby companies, the e-commerce industry for adults according to data from the Association of Electronic Commerce for Adults – ASOCEA and the Ministry of Commerce, Industry and Tourism has allowed More than 200,000 families are linked to an economic and work activity and thus can bring economic support to their homes.

The adult e-commerce industry has also allowed this economic sector to employ different professions or trades such as lawyers, accountants, administrators, engineers, architects, photographers, technology developers, cleaning staff, security guards, among others.

It should be noted that in addition to generating jobs and income for a significant number of Colombians, the industry would represent in economic terms an income to the country of between US$600 million and US$1,000 per year (La República, February 27, 2023), which which is equivalent to about 20% of the taxes that the country obtained in 2022 as a result of the oil industry, one of the most. important in the country, and which amounted to $18,160 million. (La República, January 23, 2023).

II ANALYSIS OF THE PROJECT

As established by our Political Constitution, Colombia is a Social State of Law, whose purpose is to ensure its inhabitants a fair economic and social order, in this sense, the present project is framed in this purpose, likewise, states article 333 of the letter. freedom of business, therefore the possibility that the electronic commerce industry for adults within Colombian territory is not marginalized from the privilege of obtaining income from the export of services through web pages, The possibility that a company can carry out entertainment activities for adults do not contradict the precepts of the Constitution or the law.

Likewise, the Political Constitution in its article 16 enshrines the free development of personality, this means that people over 18 years of age who voluntarily accept to carry out the activity of webcam models cannot be restricted in their right to work and must be able to provide it. without major setbacks and with all the guarantees that only a company and a commercial establishment recognized by Colombian law can offer you.

Observing the previous points of view, it is up to the State to guarantee minimum standards for companies and people dedicated to this industry, in this way it is possible to improve the conditions of service provision of the target population dedicated to this activity. always prioritizing the application of constitutional and legal precepts.

In this order of ideas and taking into account that there is a regulatory vacuum that the Constitutional Court in 2021 has called for to fill and regulate by the Congress of the Republic and the Ministry of Labor regarding the adult entertainment industry, it is recognized that This exhortation still remains unfulfilled and therefore there is no precise regulation for companies, commercial establishments and legal security for models; For this reason, it is considered necessary to advance this Bill that supports the regulation of minimum requirements for the development of the industry, the definition of surveillance and control mechanisms and guarantees of freedom and rights for those who carry out the activity. webcam, as well as prevent and control possible money laundering activities, and guarantee and clarify the use of land, the CIUU code, and contribute to legitimizing a significant economic activity for the country on the legality of the webcam modeling industry. and the companies dedicated to this activity.

III SOCIAL FUNDAMENTALS

Currently, according to data published by Forbes (June 7, 2022), there are nearly 5,000 studies linked to the adult trade industry nationwide, distributed in cities such as Bogotá, Medellín, Cali, Cartagena, Santa Marta, Barranquilla, Ibagué , Bucaramanga, Cúcuta, Valledupar, Villavicencio, Armenia and Pereira.

The adult entertainment industry has not only grown, but the year-on-year expansion of an activity that generates income and employment opportunities in a country with a lack of opportunities for some sectors is evident. According to figures from Forbes and Valora Analitik (2022), the industry represents nearly 150,000 jobs, of which 100,000 correspond to models and 50,000 to monitors, cleaning staff, administrative positions, among others.

For all these components, this bill has an important social impact in the Colombian territory, since it contributes to the promotion of employment and the formalization of an industry that grows exponentially year after year, obtaining regulation and standards of quality and human dignity.

IV INSTITUTIONAL BARRIERS FOR THE LEGAL DEVELOPMENT OF THE ACTIVITY

Taking into account that article 73 of Law 2010 of 2019 determines that the webcam activity must be contracted through the mandate modality, the activity must be associated in accordance with the provisions of the ISIC code 4610, which establishes the following:

4610 Wholesale trade for remuneration or contract

This class includes the following activities, with adult business activities and webcam services within section 2, as demonstrated below:

The activities of commission agents and other wholesalers who trade in the name and on behalf of third parties.

The activities of persons who bring sellers and buyers into contact and carry out commercial transactions on behalf of an ordering party (buyer), including those carried out over the Internet. 3. The activities of agents dedicated to the sale of: agricultural raw materials, live animals and raw materials and semi-finished textile products; fuels, minerals, metals and chemicals for industrial use, including fertilizers; food, beverages and tobacco; textile products, clothing, furs, footwear and leather goods; wood and construction materials; machinery, including office equipment and computers, industrial equipment, ships and airplanes; furniture, household goods and hardware items, among others.

It is important to specify that DANE classified adult entertainment activities through digital platforms using the ISIC code 9609, however the activities implicit in this code are similar or related to activities derived from prostitution, which generates stigmatization by the financial sector, preventing this industry. to access bank accounts and credits as other sectors of the economy in Colombia have done; for this reason the classification to the code.

It is important to specify that DANE classified adult entertainment activities through digital platforms using the ISIC code 9609, however the activities implicit in this code are similar or related to activities derived from prostitution, which generates stigmatization by the financial sector, preventing this industry. to access bank accounts and credits as other sectors of the economy in Colombia have done; For this reason, the classification to the ISIC code 4610 will allow this industry a greater field of action and for the government to have clarity and control of the income generated by the webcam industry.

Consequently, webcam activity should be treated as a commercial activity as long as it meets the conditions required by the Law for any industry in Colombia.

CONFLICT OF INTERESTS

In accordance with the provisions of article 3 of Law 2003 of 2019, in accordance with articles 286 and 291 of Law 5 of 1992, the author of this legislative initiative presents the following facts or circumstances that could constitute a conflict of interest for the discussion and voting of this Bill as a guide for the other congressmen to make a decision on whether they are due to impediment, «without prejudice to other causes that the Congressman may find.»

Therefore, in compliance with the provisions of the aforementioned regulatory framework, I would like to point out that in the process of this Project conflicts of interest could arise on the part of those congressmen who may have relatives within the degrees of consanguinity and affinity enshrined in the law. with express or direct interests in the benefits that may be generated by the regulation of studios and the webcam industry in general, or obtain direct or present benefits

From the Representative,

ALEJANDRO OCAMPO GIRALDO

Representative to the House