The eruption of new technologies in the conduct of economic activities has had an impact across the southern hemisphere, and business activities in Colombia have not been the exception. The adaptation of companies to the use of these new technologies has been accompanied by innovations in legal interpretations and constructions that adapt to the changes in current economic relations. Specifically, Article 91 of Law 633 of 2000 is clear in stating that any website where economic activities are carried out is obliged to be registered in the Commercial Registry.
Of course, the legal treatment of this type of virtual spaces by the regulation, analyzed from case law, is analogously limited to the obligations arising from a physical commercial establishment, because they are legally considered in the same way as traditional physical commercial establishments, with the caveat that it makes use of new technological dynamics. However, it should be clarified that, despite its virtual nature, the virtual commercial establishment responds to all the characteristics of the physical commercial establishment. Therefore, it is understood that there is a functional equivalence that makes the obligations of one apply to the other, also vesting it with the obligations of commercial registration in safeguarding its publicity and public nature.
At the same time, it is necessary to understand the characteristics of the public nature of the Commercial Registry and the legal need for its registration, since it is the publicity of this registry and its possibility of being consulted by any person that is the reason for its existence. Likewise, Judgment C-1147 of 2001 of the Constitutional Court states that in addition to the public nature of the Registry, its publicity is vital to provide security to businesses and makes its effects opposable to third parties. Furthermore, the information expressed in the Registry contributes significantly in tax matters to maintain better control of the fluctuation of the national economy and the different economic sectors.
But who is responsible for making the registration? This is of vital importance, since taking into account the functional equivalence between these two types of commercial establishments, the failure to comply with the regulation by the responsible party may lead to different sanctions established in the Commercial Code. Therefore, it is essential to clarify who are the holders of such obligation. In that sense, it is understood that the legally responsible person is the one who acts as the material agent of the operation. This or these may be the merchant, the service provider, the financial agent, etc., who through real or virtual means exercises the activities inherent to commerce. Furthermore, Law 633 of 2000 also contemplates that the administrator of Internet domains, or an operator of the services that allow connection to the system, may hold the obligation to make the registration.
Consequently, the aforementioned responsible party may incur a sanction, which is stipulated in Article 37 of the Commercial Code, adjusted by numeral 5 of Article 11 of Special Decree 2153 of December 31, 1992, which states that omitting the registration of the commercial establishment may lead to fines up to the equivalent of seventeen (17) monthly legal minimum wages in effect at the time of the imposition of the sanction. In addition, there are non-monetary consequences such as risking the business's trade name, loss of visibility with potential clients, generation of legal uncertainty, and the impossibility of bidding with the State, among others.
Therefore, understanding the legal analysis and the facts found in the need for registration of the virtual commercial establishment, it is concluded that both web pages and internet sites where economic activities of a commercial, financial, or service provision nature are carried out must be registered in the Commercial Registry.
In that order of ideas, it is important that the adaptation of digital media to business activities be jointly carried out with the satisfaction of the new legal requirements built by the legal system in order to regulate the commercial activities of these new technologies.