Navigating Ecuador's Defamation and Libel Laws: A Guide for Expats

As an Ecuadorian lawyer based in Cuenca, I've seen firsthand how the excitement of expat life can be shadowed by the anxiety of navigating a new legal system. A common area of concern is reputational harm. A heated online comment or a business dispute that spills into public accusations can quickly escalate in ways that are unfamiliar to foreigners. This guide cuts through the confusion, providing an accurate, authoritative overview of Ecuador's laws on defamation and libel, grounded in the realities of our legal process.

The Legal Framework: Criminal vs. Civil Actions

In Ecuador, offenses against honor are not a simple matter of "slander" or "defamation." The legal path you take depends entirely on the nature of the accusation. It is crucial to distinguish between a criminal offense and a civil wrong.

Criminal Defamation: Calumnia

The primary criminal offense related to reputation is Calumnia, defined in Article 182 of the Código Orgánico Integral Penal (COIP). This is not about general insults; it is the specific, false, and malicious imputation of a crime to another person.

• What it is: To commit calumnia, someone must publicly and falsely accuse you of a specific crime (e.g., theft, fraud, assault).
• The Burden of Proof: The accuser must prove that the statement was false and made with malicious intent.
• The Penalty: If convicted, the offender faces imprisonment from six months to two years.

The Decriminalization of Insults: What Happened to Injuria?

Many outdated online resources still refer to injuria (insult) as a common crime. This is a critical misunderstanding. A major 2014 legal reform decriminalized injurias no calumniosas (non-defamatory insults) between private individuals. Today, you can no longer file a criminal complaint simply because someone insulted you or said something offensive that wasn't an accusation of a crime. The legal remedy for general reputational harm, offensive language, or damage to your good name now lies almost exclusively in the civil arena.

Civil Action: Moral Damages (Daño Moral)

For most cases of reputational harm that expats encounter—such as damaging business reviews, widespread gossip, or severe public insults that don't amount to calumnia—the correct legal path is a civil lawsuit seeking compensation for daño moral (moral damages).

This is governed by the Código Civil, specifically Article 2231, which establishes the right to compensation for harm to one's honor, reputation, or personal standing. This process does not result in jail time but in a court-ordered monetary payment from the offender to the victim.

Common Expat Pitfalls and How to Avoid Them

• Facebook Feuds: In expat social media groups, a negative review of a local business or a personal disagreement can quickly devolve into public accusations. Remember, accusing a contractor of "theft" online without a police report or court ruling is a textbook example of potential calumnia.
• "He said, she said" in Business: During a business dispute, publicly claiming your partner committed "fraud" (estafa) without proof is extremely dangerous. Stick to the facts of the contractual disagreement and handle the legal matters privately through your attorney.
• The Notarized Warning Letter (Carta Notariada): A common mistake is letting a situation fester. Often, the most effective first step is to have an attorney draft and deliver a formal, notarized letter demanding a retraction and public apology. This formal step, often costing between $40 and $60, shows you are serious and creates a paper trail for future legal action.

The Legal Process: A Realistic Look

If you believe you have been a victim, or if you are accused, the procedural steps are precise and unforgiving.

Filing a Complaint for Calumnia (The Criminal Path)

This is where many people make a critical error. Calumnia is an acción penal privada (a private criminal action).

1. You DO NOT file a denuncia at the Fiscalía (Prosecutor's Office). The Fiscalía does not investigate these cases. This is a common and costly mistake.
2. You MUST file a querella (a private criminal complaint) directly with a criminal court judge. This requires the mandatory signature and sponsorship of a licensed attorney (patrocinio de un abogado).
3. Gathering Rock-Solid Evidence: Your case lives or dies on your evidence.
   • Screenshots are weak evidence. To give digital evidence legal weight, you must go to a notary public and have them create an acta de constatación notarial. The notary will access the URL in person, witness the defamatory content, and certify its existence, date, and time in a public instrument. This can cost between $100 and $200 but makes your evidence vastly more credible in court.
   • Witness Testimony: Identify credible witnesses willing to provide a sworn statement (declaración juramentada) before a notary.

Filing a Lawsuit for Daño Moral (The Civil Path)

1. Consult an Attorney: Your lawyer will assess the harm done and help quantify the monetary damages you are seeking.
2. File a Demanda: A formal civil lawsuit is filed in the appropriate court.
3. Mediation: In many cases, the court will first order the parties to attend a mandatory mediation session at an official Centro de Mediación to see if a settlement can be reached.
4. Trial: If mediation fails, the case proceeds to a civil trial where a judge will hear evidence and rule on whether moral damages occurred and the amount of compensation.

Defending Against an Accusation

If you are accused of calumnia, the primary defense is the exceptio veritatis ("the exception of truth"). If you can prove in court that the crime you imputed to the person is, in fact, true (e.g., with a final court sentence against them), you cannot be convicted of calumnia. For both criminal and civil cases, demonstrating a lack of malicious intent can also be a key part of your defense.

Legal Checklist for Cuenca Expats

• Verify Information Before Sharing: Never repeat or post an accusation of a crime unless you have seen official, verifiable proof.
• Distinguish Insult from Crime: Understand that while offensive, a simple insult is not a criminal matter in Ecuador. Don't threaten criminal action for hurt feelings.
• Professionalize Your Evidence: If you must act, invest in an acta de constatación notarial for online content. Your lawyer will thank you.
• Know the Right Procedure: Remember, calumnia requires a querella (private complaint to a judge), not a denuncia (report to the prosecutor). Getting this wrong can get your case thrown out.
• Seek Counsel Before Acting: The nuances between civil and criminal paths are significant. An initial legal consultation, typically costing $50-$100 in Cuenca, can save you thousands of dollars and immense stress.

⚠️ Legal Alert: When to Stop and Consult an Attorney Immediately

You should engage legal counsel without delay if:

• You receive a citación judicial (court summons) or a carta notariada from another party's lawyer.
• You are considering publicly accusing an individual or business of a specific crime like theft, fraud, or assault.
• The accusations against you or your business are specific, repeated, and causing demonstrable harm (e.g., loss of customers, public shunning).
• A dispute has moved beyond simple disagreement into the territory of public threats to your reputation.

Protecting your reputation in Ecuador is entirely possible, but it requires navigating the system as it actually is, not as you assume it to be. By understanding the critical distinction between criminal calumnia and civil daño moral, and by following the correct legal procedures, you can effectively defend your honor and good name.

Disclaimer: This article provides general information and does not constitute legal advice. You should consult with a qualified Ecuadorian attorney for advice on your specific situation.