2015 Year in Review for telecommunications, data protection, and technology law in Peru:

By Oscar Montezuma Panez1

What are the main international developments in 2015 regarding regulatory matters?
The following developments stood out internationally:
1. In 2015, the telecommunications markets showed a clear trend towards the so-called
quadruple play with service bundling offers combining traditional communications services
with digital services which are aimed at an increased technological convergence. This was
accompanied by an increased activity in the market of mergers and acquisitions of
companies in this sector.
2. In the same field of telecommunications, two relevant international statements have
polarized positions on the regulation of net neutrality. In February 2015, the United States
issued a statement legitimating net neutrality, while the European Parliament voted for a
proposal considered by some as contrary to the principles upholding net neutrality. The
regulation of net neutrality will undoubtedly continue prompting an intense debate in 2016 in
various jurisdictions.
3. On December 15, 2015, the European Commission communicated the new changes to the
guiding Community rule in terms of personal data protection, which may affect digital
environments. This new regulatory package will certainly have an influence on future
regulations to be developed internationally on this subject matter. It also highlights the
statement of the European Court of Justice declaring the Safe Harbor decision between
the United States and the European Union regarding the international transfer of personal
data, invalid.
4. The European Commission communicated on December 9, 2015 a series of reforms aimed
at consolidating a European digital single market. These reforms basically propose modern
digital contract rules to simplify and promote access to digital content and online sales
across the European Union.
5. Some significant reforms approved by the European Parliament in July 2015 in terms of
copyright law are relevant and will lead to new discussions on this subject matter since they
incorporate certain flexibility within the current regulatory framework.
6. On October 5, 2015, the negotiations of the Trans Pacific Partnership Agreement (TPPA)
ended. After years of negotiation, a multilateral trade agreement was finally concluded,
which involves 12 important economies of the world, including Peru. This agreement
addresses, among others, various matters related to electronic trade, telecommunications,
data protection, and intellectual property in digital environments. Official texts can be
accessed through the following link.

1 Attorney-at-law specialized in the regulation of telecommunications and information technologies. Partner of

Montezuma & Porto.

What is the situation of Peru, at comparative level, in terms of telecommunications and

technology?
The most relevant international rankings continue to show a certain level of lag from Peru with
respect to the development of sustainable public policies that consolidate an appropriate digital
ecosystem for the deployment of telecommunications and information technologies as a focus of
development. Although there are important government initiatives, a higher level of coordination
through a governing body is required, which results in measures of high economic and social
impact. Pursuant to a report published by the National Council for Competitiveness (CNC, for its
abbreviation in Spanish) this year, the creation of an institutional arrangement, that is, of a
governing body that coordinates and leads the development of telecommunications and information
technologies, would contribute 6.91 accumulated additional points to the rate of digitization as of
2018, in other words, US$1,150 million of accumulated additional GDP. The foregoing reveals the
importance of considering information technologies and communications as a strategic focus in
State policies.
Other relevant rankings that reflect Perus international position are:

The annual ranking of the International Telecommunication Union (ITU), which analyzes the
level of development in information technologies and communications in 167 countries,
shows that Peru went down from the 91 st place (2010) to the 104 th place (2015). At regional
level, Peru is in the 22nd place out of 33 countries analyzed. Lag is evident and shows that a
great initiative such as the development of the broadband backbone is not enough to
facilitate access to telecommunications nationwide but it is necessary to go one step further
and think of how to make that benefit sustainable.
The Global Information Technology Report 2015 prepared by the World Economic Forum
analyzes four pillars (i) the regulatory and business environment, (ii) the level of access,
quality and preparation of the population to take advantage of information technologies, (iii)
the level of use of information technologies by individuals, businesses and government, and
(iv) the social and economic impact of such use. The report of this year reveals that Peru
maintains its position in the 90th/143rd place but it is behind its regional peers.

What were the main regulatory changes in Peru?

Telecommunications
The Supervisory Board for Private Investment in Telecommunications (OSIPTEL, for its
abbreviation in Spanish) has issued various regulations on the telecommunications sector.
First of all, the draft regulations on net neutrality stand out, the discussion of which will need
to be extended and deepened even more.
Another relevant regulatory project pending approval is the supplementary regulations that
apply to Mobile Virtual Network Operators (MVNOs). However, those regulations that
regulate the activity of Rural Mobile Infrastructure Operators (OIMRs, for its abbreviation in
Spanish) are pending issuance.
The construction and final implementation of the fiber-optic backbone and the bidding
process for the 700 MHz band will continue being projects of strategic priority for the State.
In 2015, some significant changes were made to the following sectorial regulation:
a. Regulations for the Handling of Complaints by Users of Public Telecommunications
Services;
b. General Regulations on the Quality of Public Telecommunications Services;
c. Terms of Use of Public Telecommunications Services;
d. General Supervision Regulations of OSIPTEL;
e. Requirements for regular information reported to OSIPTEL;
f. Single Revised Text (TUO, for its abbreviation in Spanish) of the General
Regulations of the Telecommunications Act, and Guidelines of the Peruvian
Telecommunications Market Openness Policy;
g. Guidelines on Complaints, approved by the Administrative Court for the Solution of
User Complaints (TRASU, for its abbreviation in Spanish);
h. Regulations on the Regulatory Contribution to OSIPTEL.
Privacy and Data Protection
The deadline to adapt to Act 29733, Personal Data Protection Act, expired in May 2015.
The National Authority of Personal Data Protection (APDP, for its abbreviation in Spanish)
has been permanently making efforts to enforce the rule through various statements and by
answering inquiries published on its website, which is positive. Both the public and private
sectors need to incorporate the current regulations as part of their organizational culture
and not only as a regulatory compliance issue. It is relevant to point to that the Doing
Business 2016 ranking, prepared by the World Bank regarding the facility to develop
businesses in each country, highlighted as positive the fact that Peru has implemented a
new regulatory framework for data protection.
On July 27, 2015, Legislative Decree 1182, also called Act on geolocation in the fight
against citizen insecurity and organized crime. This act allows the police to access
information on the location of mobile equipment in 24 hours and without the need of a prior
court order. The procedure demands that the following requirements are met: (i) to be
facing a case of flagrante delicto using mobile devices as reported by the affected person,
(ii) the crime must be punished with four or more years of imprisonment, (iii) access to the
location of the mobile equipment must be necessary for the prosecution of the crime, and
(iv) within the next 24 hours, the judge or prosecutor must validate the order. Furthermore,
the rule requires telecommunications service providers to keep records of such information
for three years. More details in the following link.
Legislative Decrees 1218 and 1219 were issued in a supplementary manner. Legislative
Decree 1218 regulates the use of video surveillance cameras, demanding transport
companies and commercial establishments to conduct video surveillance, keep such
recordings, and make them immediately available to the police or the prosecutor. Despite
that the rule promotes respect for privacy, it is not clear how these provisions will be
articulated with the Personal Data Protection Act, which requires the express consent of

individuals in case of any collection of their personal data, such as images. Legislative
Decree 1219 requires a public official or individual to collaborate with the police and given
them, immediately and without any prior court order, any image, video, audio or recording
that may be considered evidence to fight crime.
Cybersecurity
Safe and responsible use of the Internet. Act 30254, Act that Promotes the Safe and
Responsible Use of Information Technologies by Children and Adolescents, was enacted on
October 25, 2014. Thanks to the leadership role assumed by the National Office of
E-Governance and IT (ONGEI, for its abbreviation in Spanish), the Draft Regulations were
developed and published for comments. As is known, the first version of the bill (popularly
known as Chehade Act, named after the congressman who proposed it) proposed that
Internet access services should be offered locked by default so that no citizen can have
access to websites containing pornography. A State-owned entity would define which sites
should be considered pornographic and which ones not. Given the clear cases of
censorship that this rule may generate, the initial bill was modified with a new proposal
based on the development of public policies that promote the safe and responsible use of
the Internet.
Computer crimes. On February 20, 2015, the Peruvian government was formally invited
by the European Council to accede to the Budapest Convention, which contains provisions
that regulate cybercrime and computer crimes. It is important to point out that, during the
last two years, Peru updated the Criminal Code in the chapter referred to computer crimes
through Act 30096, following some parameters set out in the aforementioned Convention.
Technology
Tax incentives to technological innovation. Through Supreme Decree 188-2015-EF, the
regulations of Act 30309, Act promoting scientific research, and technological development
and innovation, were issued. This rule offers significant tax benefits for scientific research,
technological development or innovation activities. The rule will enter into force in January
2016 and will remain in force until December 31, 2019.
Drones. Three bills were proposed in the Congress of the Republic, which are aimed at
regulating the operation of drones in Peru (Bills 3872/2014-CR, 4416/2014-CR and
4863/2015-CR). Furthermore, the General Directorate of Civil Aviation (DGAC, for its
abbreviation in Spanish) approved, through Directorial Resolution 501-2015-MTC/12, a
technical rule that regulates the Requirements for Operations of Remotely Piloted Aircraft
Systems. It will be important to review both legislative initiatives in detail in order to avoid
the overlapping of this new technology.
Teleworking. The regulations of Act 30036, Act that Regulates Teleworking, were issued
through Supreme Decree 017-2015-TR. This rule sets out the regulatory framework that
applies to those workers who perform their duties remotely using information technologies.
It will be very important to promote its use and analyze its evolution during 2016.
Electronic medical records. On December 17, the Regulations of Act 30024, Act on
Electronic Medical Records, were published, approved by Supreme Decree No. 039-2015SA. This rule completes the regulatory framework that applies to this technological solution,
which may have a very positive impact on the health sector.
Intellectual Property
The execution of the TPP will require the prompt implementation of an outstanding issue
arising from Article 16.11.29 of the FTA with the United States: the regime that applies to the
liability that Internet service providers will have for violations of third parties copyrights. The
term set for the implementation of the aforementioned article in the FTA expired on January
31, 2010.

What are the main trends and projections for 2016?

The debates on rules that promote net neutrality will continue being an ongoing discussion
in the telecommunications markets in 2016, and there will be more and more countries that
adopt net neutrality protection as a standard. In turn, telecommunications operators will
continue consolidating a trend towards an increasingly complete and convergent offer of
services. In Peru, the governments strategic projects in the telecommunications field will
continue.
The year 2016 will continue being a year of progressive development of the so-called
Internet of Things (IoT). More and more devices (not only telecommunications devices,
such as cell phones or tablets) will be connected to the network, and this will increase
discussions about the appropriate level of privacy control by users. It is likely that there will
be an increasing demand for regulation on privacy and personal data protection in terms of
IoT.
The sharing economy will continue being a trend in 2016. New digital startups will continue
breaking into the market, questioning the status quo of conventional businesses and
following the trend of what happened with the taxi and hosting businesses and even the
FinTech business. The regulation role will be essential in this matter.
Encouraging the widespread use of various types of drones will lead to an increased
demand of regulation as is happening in the United States and even in countries where
such widespread use has not occurred yet, such as Peru.
New technologies such as 3D printers and the development of autonomous vehicles will
continue creating interesting challenges and regulatory questions.
The recent terrorist attacks in various jurisdictions will create the need to strengthen
national and international regulatory frameworks, which will result in intense discussions
similar to those generated in Peru with the geolocation act, where it will be necessary to
find a balance between the protection of individual liberties and the defense of public
interest.
In Peru, the outstanding implementation of the TPP and the FTA will create, in 2016, a new
space for debate about the regulatory model that applies to Internet service providers with
respect to violations of third parties copyrights, a debate that needs to be deepened in
Peru.