Since the beginning of the 90s of the last century, Colombia has witnessed the strong impact of the technological revolution and its consequences, new technologies, new forms of communication and the emergence of the Internet transformed the way we relate, how we communicate and how we inform ourselves. In the same sense, financial institutions, including banks, adapted to the technological developments of the time and introduced significant advances to facilitate and speed up the financial relationship and the channels of interaction between consumer and institution. However, the implementation of these new interaction mechanisms brought with it risks that may affect the consumer, so the law has had to adapt and evolve to provide a solution to the possible controversies arising from the affectation of this financial relationship. Based on the above, the legislator has not overlooked this situation and has tried to regulate financial relationships in a way that provides essential guarantees to the consumer, however, the emergence of new forms of electronic banking fraud has made the task more difficult. The doctrine and jurisprudence have sought to find a solution to the legislative gaps of the last decade, under the understanding of the need to develop in depth the liability regime that should govern financial relations. The Supreme Court of Justice has maintained a jurisprudential line of strict liability for electronic fraud, arguing that it is the bank who has all the tools to prevent fraud, and therefore, this burden should not fall on the account holder. In other words, the financial user does not have custody of the money deposited, does not participate in the bank's operational decisions, does not have access to the information to face the risks and does not find it economically reasonable to face them. This situation differs notably for the bank, which does have all the above mentioned elements (CSJ-5176-2020). Simultaneously, the Financial Superintendency of Colombia, in use of its jurisdictional powers, has followed a line of argument very similar to that of the Supreme Court of Justice. However, in its pronouncements it has been more rigid regarding the duties of consumers and refers to shared fault when there is a breach of such duties, transferring part of the risk to the consumer. This is evident when stating that: “Although it is true that the liability that is predicated on financial entities is analyzed under the perspective of the diligence and professionalism that is imposed on them in the exercise of their activity, it is no less true that this may disappear or be diminished according to the exclusive or concurrent participation of the financial consumer in causing the damage for which compensation is sought.” (Superintendencia Financiera de Colombia, 2012) This being so, an exhaustive study of contemporary jurisprudence is necessary to clarify the application and scope of banking liability in Colombia today. Based on the above, this paper seeks to answer: What is the liability regime applicable in Colombia to banking entities in matters of electronic fraud? Thus building the evolution of the banking liability regime in Colombia from a jurisprudential perspective.
