The Colombian Supreme Court Affirms Human Right to Technological and Scientific Progress: Navigating Legal Challenges in the Era of Disruptive Innovation

by | Apr 2, 2024

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About Ignacio Boulin and Natalia Caroprese

Ignacio Boulin is a human rights lawyer. He holds a JD from the University of Mendoza, a Masters in Administrative Law from Universidad Austral, and an LLM from Harvard Law School. He is a PhD candidate at KU Leuven. Natalia Caroprese is a dispute resolution and regulatory lawyer. She earned a JD and a Masters in Economic Law at Javeriana University, and holds an LLM from Erasmus University. Admitted to practice law in Colombia and Mexico, she serves as Senior Regulatory Counsel in Mexico and Latam Antitrust Counsel for Uber, previously leading its litigation strategy in various countries.    

Disruptive innovations start in the minds of people who, under open constitutional frameworks, have the freedom to assert rights that protect their creations. Later, governments usually apply regulations that were designed for different and possibly older phenomena. Paraphrasing Rousseau, innovations are born constitutionally free and live among administrative chains. In a recent ruling (SC370-2023), the Colombian Supreme Court of Justice acknowledged and applied the human right to enjoy the benefits of technological and scientific progress. With this original decision, the Court opened new paths for legislators and administrators to consider this right when designing the legal framework of innovations. It also equipped judges and lawyers with initial theoretical reasoning that can lay the foundation for future cases regarding the protection of the technological rights of citizens.

The case involved a competition law matter, where the incumbent taxi industry sought to block a ridesharing platform. A judge of the Colombian Competition Authority (Superintendencia de Industria y Comercio) issued the first-instance decision—later revoked by the Appeals Court— ordering the blockage of the app for allegedly unfair competition.

When the Supreme Court issued its decision on 10 October 2023, it changed the terms of the discussion. Quoting Geoffrey Parker and Frederick Schauer, among other scholars, the Supreme Court considered that judges must proceed cautiously, especially given that these disruptions pose new questions that are usually hard to answer. This results from regulators’ failure to fully understand the disruptive products and services, plus an outdated legal framework in which the disruptions do not seem to fit. In this case, the taxi industry was facing competition from a new sharing economy industry, which allows individuals to borrow or rent assets owned by someone else, facilitated by a digital platform. Thus, as the internet becomes a creative infrastructure for innovators, it allows the launch of entirely new business models, triggering various legal challenges.

According to the Court, the existing legal tools, at least in Civil Law countries such as Colombia, may be inadequate to solve these conflicts – thus, the importance of rights. In this case, the right to access the benefits of technological and scientific development benefits became particularly relevant. Regulators cannot foresee the future, and technological innovations develop faster than the appropriate regulatory frameworks. As the Court clearly stated: “If it were to be claimed that the mere use of information and communications technologies to influence the decision-making sphere of customers corresponds to a mechanism contrary to unfair competition, the (…) human right [to technological development] would be put at risk.” The Court had previously referred to innovations and technological developments in the context of unfair competition cases (i.e. SC5473-2021), but this is the first time it relates explicitly to it as a right of all individuals to enjoy the benefits of technological and scientific progress.

This right is solidly grounded on international instruments. The Court recalled this human right has been recognised at least since 1948 in the OAS Charter (Art. 38: “The Member States shall extend among themselves the benefits of science and technology by encouraging the exchange and utilization of scientific and technical knowledge in accordance with existing treaties and national laws”), and the Universal Declaration of Human Rights (Art. 27: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”). It was further acknowledged in various international legal instruments such as the American Declaration on the Rights and Duties of Man, which proclaims in Article XIII: “Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries”, and some of its Protocols. This right has also been expressly established in national constitutions such as Mexico’s (Cfr. Art. 3-V). However, Latin American domestic tribunals and international human rights courts and bodies have avoided referring to it. It has been somehow hidden until now, given the pace of technological innovation is challenging its omission.

Taking rights seriously means respecting all of them. Technology can be regulated to serve the many, but the law cannot hinder the progress of the society it serves.





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