The legal 500: TMT Country Comparative Guide

  1. What is the regulatory regime for technology?

The technology sector does not have a regulatory regime of its own. However there is a principal legal framework in the Dominican Republic comprised in the General Telecommunications Law No. 153-98, the Electronic Commerce, Documents and Digital Signatures under Law No. 126-02, the Access to Public Information Law No. 200-04, the Industrial Property Law No. 20-00, the Copyright Law No. 65-00, the Law against High Technology Crimes and Offenses No. 53-07 and Law No. 340-06 regarding the Purchases and Contracts of Goods and Services. This main legal framework aims to regulate the technology market of the country, under the supervision of several governmental agencies responsible for the application and enforcement of the abovementioned legislations.

  1. Are communications networks or services regulated?

Yes, by the General Telecommunications Law No. 153-98, overseen by the Dominican Institute of Telecommunications (hereinafter, “INDOTEL” for its Spanish acronym).

  1. If so, what activities are covered and what licences or authorisations are required?

Under the provisions of Law No. 153-98 and its Regulation, all licenses must be filed by the applicants and comply with all technical and financial information required by the Regulation for Concessions, Inscriptions in Special Registries and Licences, as applicable. INDOTEL may grant a direct license for the use and operation of microwave links or other shared or private services.

However, licenses associated with commercial exploitation of mobile, broadcast and other wireless services are subject, for its assignment, to a tender process to be called by INDOTEL depending on demand needs or spectrum availability. In contrast, satellite services require only a special registration, which is a rather simple procedure carried out before the Executive Director of INDOTEL, who will grant it along with the proper up and downlink frequencies. The spectrum allocation for satellite systems follow the Region 2 (Americas) chart of the RR.

It is important to note that the duration for obtaining such authorisations depend on the service object of the request made, as well as INDOTEL´s docket, and could vary between three months to a year. To date, authorizations are not subject to any payments for either granting or renewing them. However, the use of radio spectrum is subject to an annual usage fee, calculated according the bandwidth and power of the installations and networks, as well as the number of stations in service.

Also, it should be noted that Article 45 of the Law creates the Contribution Towards Telecommunications Development (“CDT” by its Spanish acronym), a 2% levy included in end-user bills and over income received by all public telecommunication service providers for international traffic destined to the Dominican Republic. CDT is the main source of INDOTEL´s financing, as well as telecommunications development projects. Moreover, pursuant to Section IV of the Dominican Tax Code, telecommunications services are also subject to a 10% Excise Tax and a 18% VAT. The Contribution Towards Telecommunications Development allows for the regulator to define specific programs that can subsidize underserved areas, and many projects have been implements to reach the Internet footprint in the country. Most of the programs have been designed to increase the number of computer penetration and Internet access, including the installation of public wi-fi hot spots, but the main driver in broadband growth continues to be the private sector through its investments and marketing initiatives.

  1. Is there any specific regulator for the provisions of communications-related services?

The General Telecommunications Law No. 153-98, the rules and regulations enacted by INDOTEL constitute the main legal framework that regulates the telecommunications market in the Dominican Republic, its application is overseen by the INDOTEL as the governmental agency responsible for the supervision and enforcement of the legislation.

INDOTEL is also responsible for fostering the development and implementation of telecoms under the universal service principle, guaranteeing the existence of a sustainable, loyal and effective competition regime for the rendering of telecoms services. Likewise, INDOTEL is also in charge of overseeing an efficient use of the spectrum, by means of preparing and enforcing the rules and regulations required for the protection of a participant’s rights, as well as sanctioning their violations or non-compliance with respect to any applicable legislation.

  1. Are they independent of the government control?

Although in its appointment process participates the private sector, who nominates two of its commissioners, INDOTEL is a governmental agency, since the President can exert control of its decisions.

  1. Are platform providers (social media, content sharing, information search engines) regulated?

No, platform providers are not regulated in the country, consequently all carriers and participants have the freedom to elect the vendor that best suits their needs, as well as to select the service platform of their preference.

  1. If so, does the reach of the regulator extend outside your jurisdiction?

Not applicable.

  1. Does a telecoms operator need to be domiciled in the country?

According to article 22 of Law 153-98, in order to provide public telecommunications services, it is required that the provider is established as a Dominican corporate entity. To that regard, the company must be domiciled in the country.

  1. Are there any restrictions on foreign ownership of telecoms operators?

The Dominican legislation only accounts to one such limitation and it is related to the ownership of broadband services which cannot be controlled by a foreign entity or individual. Except for broadcast services, there are no local ownership requirements or restrictions on foreign investment.

Law 153-98 as well as the Authorizations Regulation, stipulates that “as regards public broadcasting services…” individuals are required to be either “Dominican nationals by birth or naturalized foreigners”. The latter seeks to “maintain control on the management of the media concessionary enterprise”. Currently, there is no restriction in our legal framework that forbids or limits cross-ownership of different communication media. It is public knowledge that a few economic groups own an array of communications sources that include television channels, newspapers and radio stations.

Any transaction that involves the change of control of broadcast companies -i.e., radio, TV, cable- or the transfer of assets and frequencies are required to obtain the approval of INDOTEL. Likewise, the entity has the authority to analyse market conditions and consolidations, thus, exercising the faculty to impose specifics obligations when competitive conditions are negatively affected as a result of such transactions.

  1. Are there any regulations covering interconnection between operators?

Yes, interconnection is first defined by Law 153-98 and further properly regulated in Resolution 042-02 with the approval of the General Interconnection Regulation for Public Telecommunication Networks and Services issued by the Board of Directors of INDOTEL.

  1. If so are these different for operators with market power?

INDOTEL has not differentiated requirements for public telecoms operators with regards to its market power. As such, all interconnecting companies must present and file with INDOTEL a Reference Interconnection Offer (RIO) setting forth the terms and conditions under which provide interconnection services to other companies.

  1. What are the principal consumer protection regulations that apply specifically to telecoms services?

The terms and conditions set forth in contracts between service providers and end users are governed by the regulations established in Law 153-98. Some of the general obligations that providers are subject to, include: no arbitrary or discriminatory actions against any user, and non-collection of fees with respect to services that have not been delivered. All forms of unlawful practices are forbidden, as are all restrictive practices within the field of telecommunications. Equality and Transparency are the basic principles upon which such contractual terms are to be agreed upon. It is mandatory for carriers and service providers to further allow users with free access to their networks’ services, according to established nondiscriminatory rules and regulations, and to provide users with free customer assistance services.

Article 101 of Law 153-98 establishes that INDOTEL is directed to regulate relationships between authorized telecommunications providers and users “guaranteeing their rights and establishing their obligations”. Consequently, a series of regulations have been issued toward this end, such as: Resolution 025-05 which sets forth the Regulation for the Solution of Controversy between users and providers of Public Telecommunications Services, as recently amended by Resolution No. 124-05; and Resolution No. 026-00 which creates the Users Assistance Center (CAU for its Spanish acronym), with the primary objective to assist telecommunications services users and guide them with respect to the rights and obligations conferred to them by current legislation.

  1. What legal protections are offered in relation to the creators of computer software?

Computer software is protected under Dominican Law 65-00. Article 2.11 of the referred law, states that software rights are protected under the same conditions that apply to literary works, for a period of 70 years after its creation. The registration of computer software copyright provides its author with moral and patrimonial rights.

Moreover, Decree No. 258-16 creates the Program for the Development of the Software Industry and TIC Services aims to promote the evolution of the small software developers by organizing trainings activities on the creation of software that fully comply with international standards.

It is important to note that since July 26, 2010 the Commission of Higher Education, Science and Technology of the Dominican Senate has been deliberating on a bill approved by the Chamber of Deputies, in order to regulate the promotion of the software industry in the Dominican Republic.

  1. Do you recognise specific intellectual property rights in respect of data/databases?

No, our current legislation does not contemplate specific intellectual property rights for databases.

  1. What key protections exist for personal data?

Law 172-13 regarding the protection of personal data has as a primary objective to protect all individuals’ personal data contained in archives, public registries, databanks and all other banking and/or technical sources of information and data processing for reporting purposes, be them public or private, “data of a personal nature registered in any databank which makes it susceptible to being processed and treated, and to all other modality of subsequent use of this data in either private and public fields” within the Dominican Republic. This law also addresses sanctions for illegal access to confidential security systems of personal data, obligations to secure and protect personal data archives; requests for international transfer of personal data; and specifically regulates the confidential personal data retrieved by credit bureaus -among other important dispositions.

Law 172-13 is further complemented by the guidelines set forth in Article 5 of the Law, which establish that “all data issued through telecommunication services are confidential and inviolable”, with the exceptions of (i) legal intervention subject to applicable common law and (ii) stipulations set forth in applicable special laws. It further mandates that public telecommunications service providers are obligated to “protect such inviolability”.

  1. Are there restrictions on the transfer of personal data overseas?

The current legislation contains no provisions or mandate to the effect that physical or legal entities shall maintain a local file for the storage of personal data under their responsibility. However, reiterated reference is only made with respect to the safekeeping and confidentiality obligations that must be observed whenever such information is handled. Data storage services and Data Centers are generally available and/or operating in the country, most of which offer storage and data recovery services in different jurisdictions without any penalties.

  1. What is the maximum fine that can be applied for breach of data protection laws?

Any person that breaches the provisions of the Law No. 172-13 could be penalized with imprisonment from six (6) months to two (2) years, and a fine consisting the payment of the equivalency of a hundred (100) to a hundred and fifty (150) Dominican minimum wages.

  1. What additional protections have been implemented, over and above the GDPR requirements?

As of yet, we cannot mention any specific protections; however, article 10 Decree No. 230-18 which creates the National Cybersecurity Center sets as its primary objective the drafting, development, updating and evaluation of a National Cybersecurity Strategy that includes the formulation of politics, programs and projects towards the prevention and detection of incidents generated at information centres with critical national data.

  1. Are there any regulatory guidelines or legal restrictions applicable to cloud-based services?

There is no regulation in place to restrict or guide the use of cloud-based services.

  1. Are there specific requirements for the validity of an electronic signature?

Yes, there are. According Law 126-02 of Electronic Commerce, Documents and Digital Signatures, a digital signature is a numeric value that is attached to any document and used through a mathematical process that allows its exclusive achievement from a user password. The Santo Domingo Chamber of Commerce is one of the entities certified by the INDOTEL to authorize the issuance of digital signatures. This new technology has transformed the traditional commercial practices. The requirements for the certificate of digital signature require the deposit of: (i) copy of the identification document of the applicant; (ii) copy of the RNC and Mercantile Registry documents is the applicant is an organization; (iii) original of the Request Form duly completed and signed; and (iv) (v) payment of the corresponding fee. There are two types of certificates (i) of digital personal signature and (ii) of digital governmental or corporate signature.

  1. In the event of an outsourcing of IT services, would any employees, assets or third party contracts transfer automatically to the outsourcing supplier?

This will depend on the extent of the contract negotiated by the parties. In general, companies just outsource the maintenance of their platforms and data, not the sensible information -i.e., contracts-.

  1. If a software program which purports to be a form of A.I. malfunctions, who is liable?

We do not have specific regulations for software programs or artificial intelligence creations; however, our Civil Code establishes who is responsible for the damages caused by inanimate objects and regarding that subject matter article 1384 of the Civil Code indicates that the owner of a thing, even if said thing is inanimate, if it is under his custody, it is the owner´s responsibility. In that respect, the damage that it is caused by the thing will be liable to the owner. Under this premise and under Dominican laws, if a software program which purports to be a form of artificial intelligence malfunctions, the owner/guardian of said software will be liable for the damage that it might cause to others.

  1. What key laws exist in terms of: (a) obligations as to the maintenance of cybersecurity; (b) and the criminality of hacking/DDOS attacks?

Law 53-07 on Cyber Crimes is based on the Dominican Republic´s Constitution; and on the guarantee of human rights principles that are mandated by the various international treaties subscribed by our country, namely: The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights under the auspices of the United Nations and the Inter-American Convention on Human Rights. It forbids the fraudulent access of registered personal information and sanctions the active subjects (legal entities or individuals, national or foreign) be it inside or outside the Dominican territory, that engage in unlawful access to an electronic, automation, telecommunications or telematic system storing personal information of service providers’ clients. The sanction consists of the payment of an amount equivalent to 1 to 200 current national minimal wage and 3 to 12-month imprisonment. Consequently, internet access and its content is mainly self-regulated, except as to the punitive part under the abovementioned law, which also addresses improper behavior, child pornography, service denial attacks and other means of cybercrime activities, including terrorism.

  1. What technology development will create the most legal change in your jurisdiction?

We think that all changes dealing with digital transformation, the cross over of OTT providers and platforms will certainly create tension in the existing telecommunications legal framework. Most of the social changes arising out of this Fourth Industrial Revolution will certainly require the adaptation of multiple legal texts and precedents, as digital and social behaviour will change.

  1. Which current legal provision/regime creates the greatest impediment to economic development/ commerce?

Our current legislation it producing an impediment to our economic regime because it does not include technologic tendencies such as mobility, social media, cloud-based services, content sharing, information search engines, big data and other factors, such as the development of digital abilities and the creation of content and applications. There is a growing conversation regarding the need to update Law No. 153-98, as it is now over 20 years old. Many of the provisions contained therein are outdated and need to be brought to current practices, especially as pertains to licensing, allocation of resources and application of its disciplinary regimen. INDOTEL has very recently signed an agreement with the ITU, who has committed to assist the Dominican government in its reform efforts.

  1. Do you believe your legal system specifically encourages or hinders digital services?

As of now, profound changes need to be implemented and introduced to relaunch the Dominican Republic’s regional leadership in digital transformation. Even though well thought programs such as Republica Digital are being implemented, their success and reach will need the backing of a new legislative agenda that deals with concepts such as Artificial Intelligence, Internet of Things, OTT operators, as well as the demands for the employments of the future. Two new agendas will need to be tackled simultaneously: the connectivity and the social and digital transformation ones.

  1. To what extent is your legal system ready to deal with the legal issues associated with artificial intelligence?

Given that there is no regulation in place to guide the use of artificial intelligence, at present our legal system is not yet fit to deal with wide-ranging issues associated with this matter. At the time any problems of this king would have to be resolved with our Civil Code or common law, which is very old and outdated.