Ecuador's Personal Data Protection Law extends its territorial scope to non-domiciled controllers and processors who offer goods or services to Ecuadorians, regardless of payment requirements.

Text of Relevant Provisions

The Law Art.4(c):

"Without prejudice to the regulations established in the international conventions and treaties ratified by the Ecuadorian State that deal with this matter, this Organic Law shall apply when: (c) The controller or processor of personal data not domiciled in the national territory who offers Ecuadorians goods or services, regardless of whether or not payment is required, or carries out activities relating to the control of their behaviour;"

Analysis of Provisions

The Personal Data Protection Law of Ecuador explicitly addresses the applicability factor of offering goods and services to Ecuadorians. Article 4(c) extends the law's territorial scope to include controllers and processors who are "not domiciled in the national territory" but who "offer Ecuadorians goods or services".

This provision is significant as it captures foreign entities that engage with the Ecuadorian market, even if they do not have a physical presence within Ecuador. The law applies regardless of whether the goods or services offered require payment, which broadens its scope to include both commercial and non-commercial activities.

The inclusion of the phrase "regardless of whether or not payment is required" is particularly noteworthy. It ensures that the law covers a wide range of scenarios, including free services such as social media platforms or other digital services that may not directly charge users but still process their personal data.

Additionally, the provision extends to entities that "carry out activities relating to the control of their behaviour". This aspect further broadens the law's reach to include entities that may not directly offer goods or services but engage in behavioral monitoring or profiling of Ecuadorians.

Implications

This provision has several important implications for businesses and organizations:

1. Extraterritorial reach: Foreign companies targeting the Ecuadorian market must comply with Ecuador's data protection law, even if they have no physical presence in the country.
2. Broad application: The law applies to both paid and free goods and services, capturing a wide range of business models, including digital platforms and online services.
3. Behavioral monitoring: Organizations engaged in tracking or analyzing the behavior of Ecuadorians are subject to the law, which may include activities such as online advertising, market research, or user profiling.
4. Compliance requirements: Non-domiciled entities offering goods or services to Ecuadorians must ensure they have appropriate data protection measures in place to comply with Ecuadorian law.
5. Potential enforcement challenges: While the law asserts its applicability to foreign entities, practical enforcement against companies without a physical presence in Ecuador may present challenges for regulatory authorities.
6. Market entry considerations: Companies looking to enter the Ecuadorian market must factor in compliance with this data protection law as part of their market entry strategy.