Navigating the Digital Minefield: Understanding Your Legal Rights and Responsibilities When Posting Online Reviews in Ecuador

As an expatriate living in Cuenca, you've likely experienced the vibrant tapestry of local businesses, from charming artisan shops to bustling restaurants. In the age of the internet, sharing your experiences—both positive and negative—through online reviews has become second nature. However, what might seem like a simple expression of opinion can carry significant legal weight in Ecuador. It is crucial to understand these implications to protect yourself from potential legal repercussions while still being able to voice legitimate concerns.

This article, written from the perspective of an experienced Ecuadorian Lawyer and Legal Consultant based in Cuenca, aims to demystify the legal landscape surrounding online reviews for expats. We will delve into the specific Ecuadorian laws that govern defamation, highlight common pitfalls, and provide clear, actionable steps to ensure your online commentary remains within legal boundaries.

The Foundation: Freedom of Expression vs. Protection of Reputation

Ecuador, like most nations, upholds the fundamental right to freedom of expression, enshrined in Article 66, numeral 6 of the Constitution of the Republic of Ecuador. This right allows individuals to express their thoughts and opinions freely. However, this freedom is not absolute. It is balanced against the equally important right to honor and a good name (derecho al honor y al buen nombre), guaranteed under Article 66, numeral 18 of the Constitution.

When you post a review, you are exercising your right to freedom of expression. But if that review contains false, damaging, or malicious statements, it can infringe upon the rights of the business owner, potentially leading to legal action.

Key Legal Concepts: Calumnia and Civil Actions for Damages

In Ecuador, harm to reputation is primarily addressed through two distinct legal avenues: a criminal complaint for calumnia and a civil lawsuit for damages. Understanding the difference is critical.

Calumnia (Criminal Libel/Slander): This is the most serious offense. Defined in Article 182 of the Organic Integral Penal Code (COIP), calumnia is the act of falsely accusing a person (or a business's legal representative) of a specific crime. For example, writing "The owner is laundering money" or "This business sells stolen goods" without proof is a textbook case of calumnia. A conviction can result in a prison sentence of six months to two years. The burden of proof lies with the accuser—the business owner must prove your accusation was false and made maliciously.
Injuria (Insult) and Actions for Moral Damages (Daño Moral): The concept of injuria (insult) as a crime has been significantly decriminalized in Ecuador. General insults, offensive language, or harsh criticisms that do not accuse someone of a crime are no longer prosecuted as jailable offenses. Instead, a business owner who feels their reputation has been unfairly harmed by a negative review will pursue a civil lawsuit for damages under the Código Orgánico General de Procesos (COGEP). This is a far more common scenario for expats. The business would file a demanda por daños y perjuicios, specifically seeking compensation for daño moral (moral damages) to their reputation and potential loss of business.
Truth as a Defense (Exceptio Veritatis): Truth is an absolute defense against a claim of calumnia. If you can prove your accusation of a crime is true, you cannot be convicted. In a civil suit for damages, demonstrating the factual basis for your negative statements is your strongest defense. However, the burden of proof may fall on you to substantiate your claims.
Opinion vs. Fact: This distinction is your primary shield.
- Opinion (Protected): Phrases like "In my opinion, the steak was overcooked," "I found the service to be slow," or "The atmosphere did not meet my expectations" are subjective and generally protected.
- Fact (Requires Proof): Statements like "The restaurant has a rat infestation," "The tour company uses unlicensed guides," or "They charged my credit card twice without authorization" are factual assertions. If these are false and cause harm, they are legally actionable.

Common Expat Pitfalls and How to Avoid Them

Underestimating the "Acta de Constatación": A frequent first step for a business owner contemplating a lawsuit is to visit a notary public. They will request an acta de constatación (notarized affidavit of facts), where the notary officially documents the existence and content of your online review, including your name and the date. This creates an official, time-stamped piece of evidence for court. A hyper-specific detail: This procedure typically costs the business owner between $60 and $100 and is a clear sign they are taking the matter seriously.
Making Unsubstantiated Criminal Accusations: The line between a harsh review and calumnia is the accusation of a crime. Avoid language that implies illegality.
- Poor: "This contractor is a fraud who steals from his clients!" (Accuses of fraud/theft).
- Better: "The final invoice included charges for work that was not completed as per our contract. I dispute these specific charges and would advise others to get a detailed, fixed-price quote."
Ignoring Pre-Lawsuit Mediation: Before a civil lawsuit for damages can formally proceed to trial in Ecuador, the parties are typically required to attend a mandatory mediation hearing (audiencia de mediación) at a government-approved mediation center. An expat might receive a formal summons (citación) for this. Ignoring it is a grave mistake, as the case will proceed without your input. A hyper-specific detail: The administrative fee for initiating a mediation process is relatively low, often starting around $40, making it an accessible first step for an aggrieved business.
Targeting Individuals with Personal Insults: Focus on the business operations, not the personal characteristics of the staff.
- Poor: "The owner, Maria, is a dishonest and unpleasant person."
- Better: "My experience with the management regarding my complaint was unsatisfactory. I felt my concerns were not taken seriously."

Beyond the Review: Alternative Recourses

Before posting a potentially inflammatory review, consider official channels that offer consumer protection. A hyper-specific detail: Instead of a public battle, you can file a formal complaint with the Defensoría del Pueblo (Ombudsman's Office). They have a mandate to protect consumer rights (derechos del consumidor) and can mediate disputes with businesses regarding service quality, billing, or faulty products. This creates a formal record of your complaint and often yields results without the legal risk of a public review. You can initiate the process online or at their local offices (in Cuenca, on Calle Larga).

Practical Steps for Compliant Online Reviews

Document Everything: Keep receipts, contracts, photos, and email correspondence related to your experience. This is your evidence if your statements are challenged.
Use "I" Statements: Frame your review from your personal perspective. "I felt," "I experienced," and "In my opinion" clearly mark your statements as subjective opinion.
Be Calm and Objective: Write your review after you've had time to cool down. An emotional, angry rant is more likely to contain actionable language than a calm, factual account.
Propose a Solution: A constructive review can be very powerful. "I was disappointed with the product, but I believe the situation could be resolved if the business offered a replacement."

Legal Checklist for Cuenca Expats Posting Online Reviews

Before you hit "post," ask yourself:

Fact Check: Is every factual statement I've made true and can I prove it?
Crime: Am I accusing the business of a specific crime (theft, fraud, etc.)? If so, delete it unless you have a police report to back it up.
Tone: Is my tone constructive or purely malicious? Am I using insults or attacking an individual's character?
Opinion vs. Fact: Have I used phrasing that clearly identifies my subjective opinions?

⚠️ Legal Alert: When to Stop and Consult an Attorney

If you are considering posting a review involving serious allegations of illegal activity, or if you have already posted a review and received a formal notice, a summons for mediation, or a cease-and-desist letter from a lawyer (a hyper-specific detail: often delivered by a court official called a citador), STOP.

Do not respond, edit, or delete the review. Anything you do can be used against you. Immediately seek counsel from a qualified Ecuadorian attorney. Navigating a demanda por daño moral or an accusation of calumnia on your own is fraught with peril and can lead to significant financial judgments against you.

Conclusion: Empowering Informed Consumerism, Responsibly

Sharing your insights about local businesses is a valuable part of the Cuenca community. By understanding the Ecuadorian legal framework—particularly the critical distinction between criminal calumnia under the COIP and civil actions for moral damages under the COGEP—you can navigate the digital review space with confidence.

Remember, the goal of a review is to inform other consumers and encourage business improvement. By adhering to factual reporting, maintaining a respectful tone, and being aware of the legal red lines, you can be a responsible and influential voice in your adopted home.