Between Digital Equality and Effective Access: A Critical Analysis of Colombia’s Ruling C-206 of 2025 on Net Neutrality and Zero-Rating Practices
The Constitutional Court of Colombia, in Ruling C-206 of 2025, declared unconstitutional a provision of Article 56 of Law 1450 of 2011 that allowed telecommunications operators to offer zero-rating services—applications that do not consume users’ data. The Court argued that such practices violate the principle of net neutrality by granting preferential treatment to certain digital content, even under commercial promotions. This decision has been praised as a step forward for digital freedom of expression and equal access to information.
However, the ruling has sparked significant debate due to its rigid application of net neutrality as an absolute value, without adequately considering the principle of proportionality. In a country where millions rely on limited mobile data plans and free access to specific apps like WhatsApp for essential services—communication, education, employment—the elimination of zero-rating could deepen digital exclusion rather than alleviate it.
The principle of proportionality, as developed in constitutional theory (notably by Robert Alexy), requires that any restriction on rights be assessed for suitability, necessity, and proportionality in the strict sense. Critics argue that the Court failed to explore less restrictive alternatives, such as conditional zero-rating for educational or public interest purposes, or user-controlled access models. The ruling also neglected to weigh the impact on other fundamental rights, such as education, health, and equality.
Moreover, the decision raises a deeper institutional question: will the Court protect only the rights of those who already enjoy full digital connectivity, or will it also act as a guardian of material equality in the digital realm? Ensuring a neutral internet must not come at the cost of disconnecting those who were just beginning to access it. For constitutional justice to be truly democratic, it must also be empathetic and context-sensitive.
Equally important is the role of the plaintiff in this case. The public action of unconstitutionality was presented as a crusade for digital equality and freedom. However, in a country with a profound digital divide, where millions depend on free access to certain apps to exercise basic rights, promoting such a claim without anticipating its regressive effects reveals a troubling disconnect from social reality. Upholding noble principles is not enough; democratic responsibility in public interest litigation requires awareness of real-world consequences. The lawsuit was based on an elitist diagnosis, detached from the digital experience of marginalized communities.
Even more concerning is the dismissive attitude of the plaintiff organization toward the adverse effects of the ruling. After the decision, it insisted that free access to apps was not banned, but rather that user choice was being promoted. Yet, without data or the means to pay for it, millions of Colombians have no such choice. The ethical responsibility of those who file constitutional challenges goes beyond technical or doctrinal victories—they must also be accountable for the practical consequences of their causes. By advancing this claim without proposing parallel solutions, compensation mechanisms, or fostering a genuine public debate, the plaintiffs assumed a politically naïve and socially irresponsible role. The defense of fundamental rights must extend beyond legal briefs—it requires real-world sensitivity and awareness.
In conclusion, while Ruling C-206 upholds a doctrinally sound interpretation of net neutrality, it overlooks the socio-economic realities of digital access in Colombia. By prioritizing formal equality over material inclusion, the Court risks undermining the very rights it seeks to protect. A more balanced approach—grounded in proportionality, democratic deliberation, and social empathy—is essential for a truly inclusive digital constitutionalism.
About the Author
Daniel Peña is a Partner at PM Abogados. Lawyer from Externado University of Colombia with a master’s degree in law from the University of London, who has also studied in Grenoble, France as well as carrying out more in-depth studies in the Hague. Daniel has almost twenty years of recent experience as a partner of one of the most recognized law firms in Colombia in the area of arbitration and litigation, intellectual property, telecommunications, media and technology. He is an arbitrator of the Chamber of Commerce of Bogotá and the Chamber of Commerce of Medellín, the World Intellectual Property Organization, the National Arbitration Forum and an undergraduate and graduate professor at the Externado University of Colombia.
For inquiries, he can be reached at [email protected].