Ecommerce in Ecuador
First of all I have to recall that Ecuador has not approved any law, rule or statute related
to Internet or Ecommerce. The Congress introduced an Ecommerce Bill since 1998
(“Proyecto de Ley de Comercio Electrónico, firmas electrónicas y mensajes de datos”,
Ecommerce Act) Therefore, are applicable for ecommerce the same laws and rules for
regular commerce (for “merchants and business”), according to the Code of Commerce
(1964) and its amendments.
I will summarize and make relevant points to the
Ecommerce Bill.
1. Contracts & Notice.-
General verbal and/or written commercial contracts are binding; for better security they
should be printed. The electronic or digital signature is not stipulated by law so an
agreement that requires a signature cannot be enforced.
Therefore, actually any
electronic contract or agreement where Ecuador has jurisdiction will be void until the
sanction of the Ecommerce Act. Some legal possibilities can be tried to prove the
purpose or intention of the parties of the contract but this too ephemeral and vague.
The Bill determine as requirements of a digital signature:
a. Unique, singularized and controlled by the user.
b. Author’s confirmation.
c. Secured and safe.
2. Jurisdiction.-
The jurisdiction can be determined in the contract agreed between the parties (national
jurisdiction and exceptional foreign jurisdiction); or, complementarily is the residence of
the seller. Contracts with the Government and its agencies have special regulations to be
followed. The shipping will be made under the same laws and conditions as regular mail
or goods distribution.
All the purchases done through internet, including auctions have the general sales tax
(IVA - currently is 12%). I consider the Ecommerce should have a tax exemption for 2
years to permit the growth of this business; and probably a special sales tax not higher
than 5%.
3. Privacy & Protection.-
All the data given to a web host is considered to be private and secret. Third parties that
receive or have any information of a person cannot disclose it; unless, the user expressly
authorizes the divulgation of the information.
An ecommerce contract can additionally established to be set as “confidential” so the
parties cannot disclose their content.
Any trading operation through the internet has to comply with the general principles and
rules of the Consumers Act of 2.000.
4. Unsolicited Email.-
Companies that send spam to promote a product or merchandise have to:
a. Get express authorization from the user.
b. The user must have the option to unsubscribe from the list and not to be asked or
“bothered” again.
c. The person who acquires the information should not give, sell or trade with a third
party the information of a user even if it was “accepted” in the agreement.
d. The law nothing says about cookies contents and use; therefore is allowed but
limited if doesn’t injures the user or consumer.
There are no rules or mechanism to enforce the non-use of spam. It could be possible an
injunction for violation of privacy but will be something novel.
Something interesting is the support of Lloyd’s of London to provide insurance for Web
auctions generated in Ecuador1. The only company that is doing this kind of business is
Shigras.com, a subsidiary of Mercado Libre.com who has the support of Ebay.com
The best mechanism to standardize the applicable laws on ecommerce on the region is a
Resolution of the Comunidad Andina (Andean Community), which will be enforceable to
Bolivia, Colombia, Ecuador, Peru and Venezuela.
1
http://www.mercadolibre.com.ec/org-img/eventuales/MEC/safe/index.html