Obligation to retain certain e-mails for 5 or 10 years
On December 28, 2016, the Superintendence of Companies, by means of official letter number 220-252836, issued a concept in which it clarifies its position regarding the obligation of the trader to keep certain emails for a period of ten years (10).
There, the mentioned Superintendence indicates that the concept of "merchant's papers" includes accounting books, minutes of assembly or meeting of partners, stock registry, the navigation or log book, the bell book or orders to the machines, among others. In addition, it also establishes that trade books are those necessary to complement and understand the aforementioned books, among which are the e-mails related to the books and papers of the merchant. Thus, e-mails related to accounting books, minutes of meetings or shareholders' meetings, share registry, the navigation or log book, the bell book or orders to the machines, among others, are the merchant's papers.
Regarding the obligation to keep the merchant's papers, Article 28 of Law 962 of 2005 and Article 60 of the Code of Commerce stipulate that they must be kept for a period of ten (10) years.
On the other hand, according to the provisions of Article 134 of Decree 2649 of 1993, the liquidators of commercial companies must keep the papers and books of the corporate entity under liquidation for a period of five (5) years.
In relation to the above, the Superintendence of Corporations concludes that the obligation to keep the e-mails in the companies for (10) or (5) years - depending on the case - falls on those e-mails that contain information related to the books and papers of the businessman, that is to say that the information that is contained in e-mails and that is of a different nature, will not have to be kept.
In accordance with the provisions of Articles 264 of the General Procedural Code and 70 of the Code of Commerce, keeping the merchant's papers in due form constitutes full evidence in commercial matters that merchants discuss among themselves. Likewise, if they fail to do so, the Superintendence of Corporations, in use of the powers granted to it by numeral 3 of article 86 of Law 222 of 1995, may impose sanctions or fines of up to two hundred (200) legal monthly minimum wages in force to those who fail to comply with its orders.
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