Jhon Jairo
Berrio Lopez

Freedom of Association: The freedom of individuals to associate, form or join organizations that represent their interests is guaranteed, including, but not limited to, professional associations, guilds and federations. An environment is promoted that encourages voluntary participation in these associations, contributing to the strengthening of the industry and ensuring effective representation.

Article 6. Definitions. In the context of this law, the following definitions are recognized for the understanding and application of the regulatory framework applicable to companies that transmit content exclusively for adults and to sellers of content exclusively for adults through the use of streaming technological platforms.

Advanced Technological Infrastructure: High-performance systems and servers, hosted in cloud environments, designed to handle large volumes of data traffic, ensuring scalability and continuous availability.
Streaming Technologies: Use of advanced streaming protocols to provide a high-quality live streaming experience, allowing immediate interaction between content marketers and their audience.
Content Coding: Implementation of advanced technologies for the efficient transmission of video and audio, ensuring adaptive delivery to the different connection speeds of users.
Security measures: Implementation of security measures such as data encryption, secure authentication and use of secure communication protocols to protect the privacy and integrity of users and content sellers.
User interface and tools: Development of intuitive user interfaces and content management tools that facilitate effective interaction and an active community.
Content Management and Moderation: Procedures and systems for the effective moderation of content and users, ensuring compliance with current use policies and legal regulations.
Payment Methods: Advanced electronic procedures and systems used by companies that own streaming platforms to facilitate the secure and efficient transfer of funds to streaming companies and sellers of adult-only content, guaranteeing integrity, confidentiality and integrity. authentication of transactions within the national territory.
Compatibility and Accessibility: Ensure that the platforms are accessible from various devices and operating systems, guaranteeing a uniform and accessible experience for all users.
Adult Only Content Seller: Natural persons of legal age who transmit content of an erotic, sensual or social nature in real time, under conditions of security, respect and mutual consent of a commercial establishment of a transmitting company.
Independent Seller of Content Exclusively for Adults: Natural persons of legal age who transmit content of an erotic, sensual or social nature in real time from their own private spaces, ensuring their autonomy and personal protection.
User of Online Content Exclusively for Adults: Natural persons who consume content of an erotic, sensual or social nature through digital platforms, complying with all regulations for the protection of minors and respect for the rights of content sellers.
Content Transmission Company Exclusively for Adults: Companies dedicated to the transmission and management of content for adults, operating under standards of safety, ethics and respect for the dignity of the participants.
Streaming Technological Platforms for Adults: Online platforms that offer the transmission of multimedia content aimed exclusively at an adult audience, including material such as movies, series, erotic content and other entertainment resources for adults. These platforms allow access to content in real time or on demand through the Internet, facilitating its viewing on various devices connected to the network.

Article 7. Regulations applicable to the provision and export of online content exclusively for adults through digital platforms. Contracts entered into by natural and legal persons whose purpose is the production, provision or export of services with erotic, sensual or social content for adults through digital platforms will be governed by the corresponding civil and commercial regulations.

Article 8. Measures to implement. In the offer and facilitation of online content aimed exclusively at an adult audience, broadcasting companies called studios and web broadcasting companies, known as streaming platforms, must imperatively implement the following security and protection strategies and protocols. compliance:

Registration and Age Verification: Studios and streaming platforms must implement rigorous registration and age verification processes, in accordance with the guidelines of the Convention on the Rights of the Child and the recommendations of the World Health Organization on the protection of minors in digital environments. This includes the use of advanced technology to ensure that it is only accessible to adults and that the content is appropriate.
Security and Privacy Measures: Measures will be established aimed at ensuring the correct application of personal data processing policies, in accordance with current regulations, to protect the privacy and integrity of users.
Protection from Exploitation and Abuse: Streaming studios and platforms must take effective measures against human trafficking and sexual exploitation, thus ensuring a safe environment for all users.
Transparency and Tax Compliance: The operations of streaming studios and platforms must be aligned with the standards of financial transparency and compliance with tax obligations established by the Organization for Economic Cooperation and Development – ​​OECD, promoting corporate responsibility and contributing to development. economic. sustainable.
Application of the Legal Regime: Both studios and streaming platforms that operate within the national territory, regardless of their main headquarters, will be subject to the Colombian legal system and must comply with the provisions and requirements applicable in their respective jurisdictions for the functioning and operation . Internationally suitable.
Article 9. Prohibitions. Natural or legal persons, whether directly or indirectly engaged in the activities regulated in this Law, may not:

Promote, induce or coerce any individual into prostitution.
Using properties where minors reside for the creation, offer or distribution of online content services of an erotic, sensual or social nature.
Exhibit, market or disseminate pornographic material that involves minors, in violation of the laws for the protection of children and adolescents.
Commit acts that constitute sexual exploitation or human trafficking.
Exercising gender violence, including threats, coercion or arbitrary deprivation of liberty.
Practice or encourage sexual harassment.
Carry out financial operations aimed at legitimizing capital of illicit origin.
Consume or distribute alcoholic beverages or psychoactive substances in places intended for economic activities regulated in this Law.
Operate in residential units or residential buildings, unless specific regulations are followed to ensure adequate separation and privacy.
For remote digital models, carry out activities in shared residential spaces with minors or older adults.
Engage in inappropriate practices in the industry regulated by this law that violate human dignity and the fundamental rights of people.

Paragraph. The violation of any of the previous prohibitions will give rise to the police sanctions referred to in Law 1801 of 2016, without prejudice to the corresponding criminal liability.

Article 10. Freedom of association and representation. In accordance with article 38 of the Political Constitution of Colombia, the right of association is explicitly recognized and guaranteed to content sellers and streaming companies that operate in the field of online erotic, sensual or social content, exclusively for adults. This right allows the creation and strengthening of associations and federations whose main function is:

Defense of Interests: Defend and represent the interests of independent content sellers and companies transmitting content exclusively for adults, before organizations and entities, both public and private, at a national and international level, promoting fair and equitable conditions for all members. of the sector.
Promotion of Wellbeing and Professional Development: Develop and promote initiatives focused on the comprehensive well-being and continuous training of members, thus raising the standards of quality and professionalism in the industry.
Protection of Rights: Guarantee the safeguarding and respect of the rights, privacy and security of content sellers and streaming companies, through the provision of legal and psychosocial support services, contributing to a safe and respectful environment.
Ethics and Good Practices: Promote adherence to codes of ethics and healthy business practices, which reflect the values ​​of respect, integrity and social responsibility, improving the image and professional ethics within the sector.
Collaboration and Dialogue: Establish and maintain communication and collaboration channels with the National Government, territorial authorities, NGOs and other relevant associations, with the aim of supporting the creation of public policies and regulations that promote the ethical, sustainable and responsible growth of the industry. . .

Paragraph: The National Government, through the Ministry of Information and Communications Technologies and other government entities, will establish guidelines to support the formation, registration and operation of said associations and federations, ensuring their significant contribution to the advancement and enrichment of the digital ecosystem. and creative of the country.

Article 11. Federations of Content Transmission Companies Exclusively for Adults. Federations that bring together companies transmitting content exclusively for adults will function as second-degree unions, made up of at least five (5) first-degree associations. These associations will defend the collective interests of their members within the adult-only content industry, including both content streaming companies and independent content sellers who choose to join together in an association of their own. The responsibility of these federations will include:

The promotion of ethical standards and adherence to good practices in the sector.
Defend the rights and promote the well-being of all participants, including independent models.
The promotion of responsible and sustainable practices within the industry.

To ensure effective and legitimate representation, federations must:

Demonstrate its representativeness and legitimacy by presenting updated data from its members, including the independent models that are incorporated.
Maintain an updated and verifiable database of all its members, guaranteeing the inclusion and adequate representation of independent models, which will be available for review by the competent authorities.

Paragraph: Federations of companies transmitting content exclusively for adults will lose their legal personality in the event that:

Failure to comply with any requirement established in this law;
Violate any of the prohibitions established in article 9 of this Law;
«Failure to comply with the responsibilities and functions assigned in article 12 of this Law.»

Article 12. Functions of the Federations of Content Transmission Companies Exclusively for Adults. The federations that bring together companies transmitting content exclusively for adults, which cover content of an erotic, sensual or social nature, will have the following responsibilities:

Representation: Act as the main representative body and spokesperson before the National Government and other bodies, facilitating effective communication and defending the interests of the sector.
Registration and Certification: Maintain an updated record of all affiliated members, ensuring their proper certification in accordance with established regulations.
Training and Dissemination: Facilitate and promote educational activities such as courses, seminars and research that support the objectives of the federation and the continuous development of the sector.
Training Certification: Provide certifications to those who complete training programs focused on the transmission of digital services for adults, covering ethical, legal and security aspects.
Operating Standards: Establish and promote operating standards and adequate conditions to guarantee safe environments in accordance with current legislation.
Promotion of Good Practices: Encourage adherence to best practices in all areas of the transmission and monetization of online content, focusing on the protection and security of participants.
Good Practices Certification: Provide recognition to members who implement and sustain distinguished practices in the industry.
Collaboration for Prevention: Actively collaborate with the authorities to prevent conduct prohibited by this law, guaranteeing a safe and dignified environment.
Support for Gender Initiatives: Promote and support initiatives that promote gender equality and women’s rights.
Internal Regulations: Implement internal regulations that regulate the organization, operation and procedures of the federation, guaranteeing transparency and the achievement of its objectives.
International Alliances: Promote the creation of alliances and agreements with international organizations and global digital platforms to support and strengthen the industry internationally.
Others: Comply with the other additional provisions that the law and the National Government determine to strengthen the sector and protect its participants.

Article 13. Requirements for Content Transmission Companies Exclusively for Adults. Private commercial premises dedicated to the transmission and management of content exclusively for adults of an erotic, sensual or social nature must meet the following requirements:

Adhere to the provisions of paragraphs 1, 2 and 3 of article 87 of Law 1801 of 2016.
Provide adequate locations that guarantee the safety of your content sellers, in accordance with the urban planning regulations of each territory.
Demonstrate compliance with good practices in the transmission and management of adult content, focusing on the protection and safety of all participants.
Comply with current regulations regarding the constitution of a company or legal entity.

Paragraph. For the purposes of paragraph 1 of article 87 of Law 1801 of 2016, companies that transmit content exclusively for adults are considered private commercial establishments intended for private activities. Consequently, they must be located in urban or rural areas suitable for commercial, industrial or other uses, complying with the low, medium or high mixture classifications established by local legislation.

Article 14. Protection and regulation of sellers of content exclusively for adults. This law recognizes and regulates the activity of sellers of content exclusively for adults who choose to provide a service independently of their homes or other private spaces. With the objective of protecting and promoting a safe, ethical and professional environment for these people, the following provisions are established:

Safe Conditions: Although they provide a service from the comfort of their home, sellers of exclusively adult content must ensure that their environment meets the minimum locative and technical conditions established for the industry, thus promoting their well-being and safety. This includes specific measures to protect minors from exposure to inappropriate content.
Good Practices and Professional Ethics: Sellers of content exclusively for adults will be subject to the same standards of good practices and professional ethics that apply to companies that transmit content exclusively for adults, ensuring responsible and respectful behavior towards the audience and the community. .
Operation of streaming platforms: Platforms that facilitate the transmission of content exclusively for adults must ensure the implementation of clear policies for the protection of the rights, privacy and security of sellers with the standards established in this law.

Article 15. Streaming Technological Platforms Exclusively for Adults. Streaming technological platforms exclusively for adults, which facilitate the distribution and dissemination of online content, including erotic, sensual or social content, located outside the national territory but operating in Colombia through the Internet, will be subject to Colombian legal provisions. system. In any case, the following provisions must be taken into account:

Transnational Regulation: Although these platforms are based outside of Colombian territory, by offering access to streaming companies and adult-only content sellers located in Colombia to transmit content abroad, they will be subject to Colombian jurisdiction and regulation with respect to the protection of the rights of participants and users in accordance with this law.
International Cooperation: Cooperation and coordination with international regulatory entities and other digital platforms will be promoted to ensure compliance with Colombian regulations, especially with regard to protection against exploitation, abuse and violation of rights.
ICT Regulatory Entity: The Communications Regulatory Commission or other competent body in matters of Information and Communications Technologies (ICT) in Colombia will supervise and regulate the transmissions made from the national territory to abroad, guaranteeing that These operations comply with the safety, ethics and protection standards established by law.
Compliance and Sanctions: Streaming technological platforms exclusively for adults must demonstrate their compliance with Colombian regulations, facing sanctions or corrective measures in case of non-compliance, including the restriction of access to their services from the national territory.
Registration and Cooperation: Streaming technological platforms exclusively for adults will be required to register with the regulatory body for Information and Communications Technologies in Colombia, committing to continuous and effective cooperation for the protection of the rights of participants and users. .

Paragraph: The Ministry of Information and Communications Technologies, in collaboration with the Superintendence of Industry and Commerce and other relevant entities, within a period of 6 months will develop the specific regulatory framework and guidelines for the effective implementation of these measures, ensuring the protection of rights within the transnational digital ecosystem.

Article 16. Financial Inclusion: Financial entities must establish measures to guarantee that streaming companies and sellers of content exclusively for adults can access the portfolio of financial services.

Paragraph: In this sense, the National Government must dictate the corresponding regulations within a period of no more than six (6) months.

Article 17. Validity of the Law. This law takes effect from the date of its promulgation.

Presented for the consideration of the Congress of the Republic of Colombia, by the undersigned.

JHON JAIRO BERRIO LÓPEZ
Representative to the House
Democratic Center

Explanation of reasons for House Bill No. _______ 2024

“By which the transmission of digital content for adults through STREAMING platforms is regulated”

Purpose of the bill

First of all, it is necessary to specify that this bill only seeks to regulate an economic activity related to the transmission of digital content for adults through streaming platforms, that is, the production and provision of erotic, sensual or content services. social for adults intended for export through digital platforms.

Although some include this type of activities within the sex industry and especially pornography, it is important to delimit and place the concepts of sensuality, eroticism and pornography in an evaluative continuum, according to the following considerations and definitions:

“The terms eroticism and sensuality are closely related, although they do not mean the same thing, because they have a great connection with each other, since both refer to seeking to attract and incite other people. Eroticism goes beyond sensuality, as it includes complex facial expressions, bodily actions and verbal manifestations. Which means that it encompasses specialized sound or visual signals symbolized by language. Eroticism can adopt a greater or lesser tendency towards sexuality, depending on the intimacy and intentionality with which it is used.

Eroticism can be seen both in something completely subtle and innocent (a deep, sustained look at an unexpected moment, passing by the desired person and whispering something pleasant in their ear, touching them as if «without meaning to»), and in something deeply intimate. and sexual (being surprised by your partner when you get home and find her wearing a very sensual outfit, ready to offer you an endless night).

Therefore, it is possible to say that eroticism is more of a cultural behavior than a sexual one. It is not possible to reduce everything related to sexuality and the physical sexual act to eroticism or, in the same way, decontextualize it from the phase of the interpersonal relationship in which it occurs, whether social (dating phase and formation of the couple). ). or intimate (precopulative activity).

The delimitation between eroticism and pornography is «a strictly personal matter», although it can be stated, without a doubt, that eroticism is limited to showing the epidermis generously and suggesting more or less mischief, while pornography illustrates sexual relations. . Explicit statements that the characters maintain.” (Bold and underlined outside the original text, like those that follow).

In relation to the concept of the social to which the bill alludes, this refers to a very typical aspect of the interaction that occurs between the model through digital platforms and the user, which in many cases only involves a conversation. and in this sense it is a virtual encounter of a social nature and not necessarily sensual or erotic.

As can be seen at a glance, the activities of production and provision of services of erotic, sensual or social content through digital platforms involve conduct of a more cultural than sexual nature and therefore it is mandatory to separate them from pornography and the sex industry. sex. and in this sense talk about a new industry such as modeling through streaming platforms.

Finally, it is also specified that the services regulated in this bill are intended for export. The natural market for these services is located outside the national territory, especially in the United States, Europe and Asia, generating approximately 720 million dollars in annual foreign exchange for the Country, according to 2019 reports.

This bill seeks to regulate and provide legal security to the modeling industry that is developed through digital platforms, specifically to commercial establishments or audiovisual production studios of erotic, sensual or social content, within a framework of protection of human dignity. , the autonomy of will and the freedom of business and association of those who develop or participate in this activity.

The authorities’ lack of knowledge of the nature and specific conditions of the commercial establishments in which these activities are carried out and the lack of regulations compatible with them generates a high level of legal uncertainty.

Therefore, it is reiterated that this bill seeks to provide greater legal security both to the modeling industry through digital platforms and to citizens in general and, in particular, seeks to provide protection to the rights of children and adolescents. , LGBTI community and others. vulnerable groups.

Current regulatory context applicable to the sector

The rules usually applied by administrative and police authorities with respect to commercial establishments dedicated to the production and provision of services of erotic, sensual or social content for adults intended for export through digital platforms, have been limited to police rules. of the national order. contained in the National Code of Citizen Security and Coexistence (Law 1801 of 2016) and urban planning regulations of the local order contained in the respective municipal or district agreements of the territorial planning plans.

From Law 1801 of 2016, among others:

Article 83. Economic activity. It is the legal activity, carried out by natural and legal persons, in any place and on any property, whether commercial, industrial, social, services, recreation or entertainment; of a public or private nature or in for-profit or non-profit entities, or similar or that, because they are private, their activities transcend the public sphere.

Paragraph. The mayors will set schedules for the exercise of economic activity in cases where this activity may affect coexistence, and failing that the governor will do so.

Article 84. Perimeter of incidence of economic activity. As of the issuance of this Code, regarding hospitals, hospices, health centers, centers that offer educational services at the preschool, basic, secondary, higher or education for work and human development levels, or religious centers, activities economic activities related to the exercise of prostitution, localized games of luck and chance, contests, or where music or noises that affect tranquility are played by any means.

It will be up to the District or Municipal Councils, at the initiative of the Mayors, to establish the perimeter for the exercise of the activities mentioned in this article, within the year following the publication of this law.

Paragraph 1. In the case of establishments that provide video game services, they must comply with the provisions of Law 1554 of 2012 in its article 3, or the regulations that modify or add to it.

Paragraph 2. The acquired rights of legally constituted establishments will be respected.

However, this last rule is not relevant or applicable to commercial establishments intended for this type of activities, audiovisual production studios with erotic, sensual or social content, considering, first of all, their nature as commercial establishments not open to the public; secondly, its purpose, the production of audiovisual content to be reproduced on streaming platforms; and, third, the conditions and resources or physical, economic and technological elements used, such as soundproof and acoustically conditioned rooms, in which technological devices, computing equipment, video cameras, lighting equipment, among others, predominate.

The exercise of this economic activity has been seen as a focus of impact on public order and citizen coexistence, with respect to which mayors or district or municipal councils are supposed to establish the perimeter for their development, assimilating them to related activities. with exercise. of prostitution, localized games of luck and chance, contests, or where music or noises that affect tranquility are carried out by any means, activities that do not correspond to those carried out by these commercial establishments, given the nature and conditions they require. the audiovisual production of erotic, sensual or social content.

In relation to the International Standard Industrial Classification (ISIC), the activities of production and provision of services of erotic, sensual or social content for adults intended for export through digital platforms, as indicated by DANE, after consulting the Division of United Nations Statistics, It corresponds to code 9609, which includes those “social activities such as those of agencies that are responsible for hiring companions or connecting people seeking company or friendship, dating services and marriage agency services.”

However, some municipal planning authorities are unaware of this economic classification, arguing that the International Standard Industrial Classification (ISIC) guides the process of applying standards and competencies in statistical matters, but that they are not applicable for the purposes of land use, whose The responsibility falls directly on the municipal authorities and they insist on classifying these activities as high impact, erroneously applying article 84 of Law 181 of 2016, under a public order approach.

Faced with precarious regulations, commercial establishments dedicated to this economic activity are exposed to sanctions with limited guarantees to exercise the rights of contradiction and challenge, given that recourse in police procedures is provided for in the devolutive effect, when the corrective measure of suspension is imposed. temporary. of activity, in development of the immediate verbal police process.

Constitutional foundation

The Constitutional Court, in relation to the tension between the preservation of public order and the exercise of citizen freedoms, has stated:

“Public order must be understood as the set of conditions of security, tranquility and health that allow general prosperity and the enjoyment of human rights. This framework constitutes the foundation and limit of police power, which is the call to maintain public order, but for the benefit of the full enjoyment of rights. In that sense, the preservation of public order cannot be achieved through the disproportionate suppression or restriction of public freedoms, since the challenge of democracy is to allow the broadest and most vigorous exercise of citizen freedoms.

Article 333 of the Political Constitution establishes that economic activities and private initiative are free, in such a way that they are part of the public rights and freedoms that must be guaranteed in a social State of law and in this sense, the preservation of public order . It cannot become a barrier to the free exercise of economic activity and private initiative.

Likewise, the Constitutional Court in Sentence C-263 of 2011, recognizes the importance of the protection of business freedom and the prohibition of unjustified discrimination:

“Freedom of enterprise includes the power of people to “(…) affect or allocate assets of any type (mainly capital) to carry out economic activities for the production and exchange of goods and services in accordance with the guidelines or models of “typical” economies. organization of the contemporary economic world with a view to obtaining a benefit or gain.” This freedom includes, among other guarantees, (i) contractual freedom, that is, the ability to enter into agreements that are necessary for the development of economic activity, and (ii) free private initiative. Its essential core includes, among other prerogatives, (i) the right to equal and non-discriminatory treatment between entrepreneurs or competitors who are in the same situation; (ii) the right to attend the market or leave; (iii) freedom of organization and the right of the State not to interfere in the internal affairs of the company, such as business organization and management methods; (iv) the right to free private initiative; (v) the right to create commercial establishments complying with the requirements of the law; and (vi) the right to receive a reasonable economic benefit.”

Taking into account that the Constitution protects and guarantees economic activity, private initiative, free economic and business competition, the lack of clarity or lack of rules that regulate the exercise of the economic activity of production and provision of erotic content services, sensual or social products for adults intended for export through digital platforms, restrict the free exercise of rights and economic freedoms in a disproportionate and unnecessary manner, preventing private initiative and the creation of companies.

FISCAL IMPACT

In accordance with the provisions of article 7 of law 819 of 2003, there are no disbursements, expenses or economic commitments borne by the National Government, given that the project aims to establish a regulatory framework for the transmission of content aimed exclusively at adults. . through technological platforms specialized in the dissemination of audio and video in streaming format, as well as other forms of online content, previously classified into categories of erotic, sensual or social content for adults.

CONFLICT OF INTERESTS

The discussion and voting on this bill does not generate conflicts of interest, in accordance with the provisions of article 286 of Law 5 of 1992, modified by article 1 of Law 2003 of 2019, since any benefit or position in The interest coincides or merges with the interests of the electorate, given the general nature of those.

On behalf of the honorable congressmen,

JHON JAIRO BERRIO LÓPEZ
Representative to the House
Democratic Center