Actualidad Colombia

Modification of the Habeas financial data law

Bill 094/2016

Bill 094/ 2016 was submitted to the Senate of the Republic of Colombia in order to make changes to the Habeas financial data law (Act 1266/2008).

These changes seek to modify issues relating to the storage of negative ratings and their expiry, determining how long a negative rating certificate is valid, credit bureau checks and eliminating negative ratings in the event of identity theft.

With respect to how long negative ratings should apply, the Bill seeks for the rating to last as long as the period of default, and never more than two years in any event. The countdown would start from the date on which the debt obligation is extinguished. This change is being proposed because under current regulation negative ratings may not last for more than twice the duration of the default in cases where the debt is under two years old; in the remaining cases, the duration is four years, counting from the date on which the debt obligation is extinguished for whatever reason.

The Bill expressly stipulates that negative ratings should expire after five years, counting from when the debt goes into default. Although the current Habeas Data law makes no provision on this particular, there is jurisprudence, with the expiry for the negative rating currently standing at ten years.  

Another proposal in the Bill is the immediate elimination of the negative rating when the reported obligation is extinguished, provided that the outstanding debt is the same or less than the equivalent of 20% of the monthly minimum wage  (Salario Mínimo Mensual Legal Vigente – SMMLV) in Colombia (COP 137,890.80 in 2016, or about USD 47). This matter is currently unregulated in Colombian legislation and may discourage small-scale business financing.

Furthermore, the Bill proposes that natural persons' risk classifications, as reported to Credit Bureaus, be updated the moment the negative rating is withdrawn, rather than being updated every 36 months, as is currently the case.  

On the matter of Credit Bureau checks, the Bill stipulates that when the check is initiated by the person who is the subject of the data, it should be free of charge and conducted without limitation. At the moment, people may only make one free check of their own data in any one month, and any others may be charged. The Bill also seeks to prohibit credit bureau checks being an automatic part of the recruitment procedure for new employees.

It also introduces a provision whereby checks with Credit Bureaus must not negatively impact the classification of the person being checked (as is currently the case).

Finally, the Bill sets out a procedure for the elimination of negative ratings in the event of identity theft.