Desafíos de la tipicidad en la era de la inteligencia artificial: análisis de la insuficiencia del régimen penal colombiano

Abstract

This research analyzes the challenges that generative artificial intelligence, particularly through deepfake technologies, poses to the principle of legality in Colombian criminal law. This research evaluates the adequacy of the current criminal law framework in Colombia, particularly since Law 599 of 2000 and the more recent Law 2502 of 2025, as well as its articulation with Law 1273 of 2009. It examines how the legislature has attempted to respond to technological sophistication by introducing aggravating circumstances and recognizing the notion of “synthetic digital identity,” but also reveals regulatory gaps regarding conduct that does not pursue a direct economic objective, such as cyber harassment, online gender-based violence, or political manipulation through audiovisual simulations. From a dogmatic perspective, the work highlights a crisis in the material object of crime and in the classical categories of authorship and culpability, especially when the illicit conduct involves autonomous or decentralized artificial intelligence systems. The attribution of responsibility in scenarios of “indirect perpetration by algorithm” challenges the traditional structures of intent and subjective imputation. Furthermore, procedural shortcomings in evidentiary matters are identified, given that Law 906 of 2004 does not include specific protocols for the authentication of synthetic content, which slows down the judicial response and exacerbates the reputational damage suffered by victims. In the jurisprudential sphere, the role of the Constitutional Court of Colombia stands out, especially through Judgment T-280 of 2022, which recognizes the right to one's image as an autonomous fundamental right and establishes a foundation for the protection of digital identity. However, the study concludes that these protective orders, while relevant, do not replace the need for a structural reform of the criminal justice system. Finally, the criminal policy analysis proposes the creation of an autonomous criminal offense of synthetic identity theft, the incorporation of criminal liability for legal entities in crimes of high technological complexity, the implementation of agile procedural mechanisms such as "Criminal Habeas Data," and the adoption of digital restorative sanctions aimed at de-indexing and digital footprint cleansing. In sum, the research argues that Colombian criminal law faces a structural deficiency in the face of the challenges of artificial intelligence, which requires a transformation.