LEGAL UPDATE
Realising the shortcomings and obsolescence of the regulations in Decree 72/2013/ND-CP as amended by Decree 27/2018/ND-CP (Decree 72), in 2021a draft decree amending Decree 72 (Draft Amendment Decree) was published for public comments.
Recently, so almost two years later, the Ministry of Information and Communications (MIC) published a new draft decree on the management, provision, and use of internet services and online information (New Draft Decree).
While the Draft Amendment Decree only amends several articles of Decree 72, the New Draft Decree has been drafted as a completely new decree to supersede Decree 72. The New Draft Decree inherits the main amendments to Decree 72 under the Draft Amendment Decree, and also includes additional adjustments and updates in comparison with the Draft Amendment Decree and Decree 72.
This legal update will set out several remarkable changes under the New Draft Decree, which is likely to be adopted in October 2023.
1. Definitions
Similar to Draft Amendment Decree, the New Draft Decree introduces several essential concepts and definitions defined for the first time in a legal document, such as fake news, group, platform, user account, channel, fanpage, livestream, app store, application/app, provision of cross-border information, multi-service platform, etc., and additionally in comparison with the Draft Amendment Decree, temporarily suspend domain name activity, domain name revocation, maintain the current status of domain name registration and use, online video game services, bonus points, virtual items, players, game card, payment support service, locations providing public electronic game services, payment support service in online video games. Furthermore, it supplements the contents related to the protection of children in the online environment, and finally clarifies and amends numerous definitions such as aggregated information, website, social network, new generic top-level domain name (New gTLD), domain name registration and maintenance service, information on the Internet.
2. Registration and Management of Social Networks
Inheriting the provisions from the Draft Amendment Decree with several adjustments, the New Draft Decree provides that social networks will be registered and managed as follows:
a. For social networks provided by foreign entities across borders into Vietnam, the management of such networks shall comply with the regulations on providing information across borders as mentioned in Section 4 below.
b. For social networks provided by enterprises or organisations incorporated under the law of Vietnam, the registration and management of domestic social networks shall be conducted based on the number of users. To provide social network services, social networks of enterprises or organisations need to:
Obtain a social network service (SNS) Licence if they have the total regular visits (TV) of at least 10,000 people per month (as reckoned in six consecutive months) or have more than 1,000 members regularly using the social network during the month; or
Notify MIC (Authority of Broadcasting and Electronic Information) (ABEI) and obtain a confirmation if they have the TV of less than 10,000 people per month (as reckoned in six consecutive months) or have less than 1,000 members regularly using the social network during the month.
In addition to the subjects provided in the Draft Amendment Decree (i.e., user accounts, channels, fan pages), the New Draft Decree stipulates that online group administrators are also responsible for managing the contents posted on their accounts, fan pages or channels, including users’ comments. All these subjects must prevent and remove information that violates the law, affects the lawful rights and interests of other organisations and individuals, or affects children within 48 hours for well-founded complaints from users or 24 hours on request of ABEI. This timeline is looser than the one prescribed by the Draft Amendment Decree, which was three hours in both cases.
3. Live Streaming and Revenue-Generating Services
Similar to the Draft Amendment Decree, the New Draft Decree stipulates that for domestic enterprises, only social networks which are granted an SNS Licence by ABEI can provide live streaming and revenue-generating services, and a domestic social network with a low number of TV will need an SNS Licence if it offers live streaming services or revenue-generating services. Though it is not clearly provided in the New Draft Decree as used to be in the Draft Amendment Decree, we understand from a recent article published on ABEI’s website on 12 September 2023 that social networks of foreign enterprises providing information across borders into Vietnam may also provide live streaming or revenue-generating services after they notify their operations to MIC.
Additionally, accounts, fan pages, channels, and groups on social networks providing information in the form of live streams must comply with the relevant specialised laws.
4. Cross-Border Information Provision
In comparison with the Draft Amendment Decree, the New Draft Decree provides further clarifications and supplements to the requirements for providing information across borders and specifies the relevant timelines for completing such requirements. Under the New Draft Decree, cross-border information providers who rent digital information storage space in Vietnam or who have at least 100,000 TVs per month (as reckoned in 06 consecutive months) need to comply with the following main regulations:
Notify their contact information to MIC within 60 days from the days the above TV is reached as mentioned above;
Control, prevent, and remove violated content, services, applications within 24 hours after the receipt of MIC’s request;
Temporarily block the activities of accounts, fan pages, groups, and channels that regularly provide violated content within 24 hours after the receipt of MIC’s request; or permanently block the same that violates the law and affects national security, or has been temporarily locked three times or more at the request of MIC;
Implement agrreements on content cooperation with Vietnamese press agencies when providing information quoted from the same on the basis of copyright regulations;
Store personal information of Vietnamese users, authenticate service user accounts with mobile phone numbers when registering accounts, ensure users’ right to decide whether to allow their personal information to be used for promotional, or communication purposes and provided to other organisations and individuals;
Only allow users in Vietnam who are 16 years of age and older to register accounts;
Having a specialised department to (i) receive, process and respond to requests from competent authorities in accordance with the law; and (ii) resolve and respond to complaints from Vietnamese users;
Within 48 hours of receiving complaints from Vietnamese users, foreign entities shall handle such complaints by temporarily locking the complained content, services, and applications that affect the legitimate rights and interests of organisations and individuals; and removing the content, services, and applications when the violations are verified according to the law;
App stores to allow only organisations and individuals in Vietnam to upload information providing applications or information service applications which are duly licensed under the law; and to comply with Vietnamese regulations on payment;
Publicise policies and processes to support customers in handling network information security issues in a concise, clear, intuitive and easy-to-understand manner;
Describe the process and method of distributing content on their social network platform and publicly disclose it in the service provision agreement or community standards for the awareness of users;
Provide content search and scanning tools at the request of MIC; and
Submit annual reports and ad hoc reports at the request of ABEI.
5. Requirements for General Information Websites and Social Networks
Similar to the Draft Amendment Decree, the New Draft Decree requires general information websites and social networks must have appropriate procedures and mechanisms to manage and control information, matters related to copyrights, censor content, protect information confidentiality, the maximum time children can use social networks (no more than 120 minutes per day), ensure users’ right to decide whether to allow their personal information to be used for promotional, communication purposes and provided to other organisations and individuals, handle complaints and violations on request by Vietnamese users or competent authorities, conduct periodic reports and ad hoc reports at the request of ABEI and the provincial Department of Information and Communications.
The New Draft Decree provides that the maximum licence term to establish a general information website or an SNS Licence shall be five years and renewable only once for no more than one year. It is (i) 10 years with the possibility to renew twice for two years under Decree 72 and (ii) five years with the possibility to renew once for no more than two years under the Draft Amendment Decree.
For more information, please contact:
Phuong Huynh / Senior Associate
phuong.huynh@acsvlegal.com
Ly Nguyen / Associate
ly.nguyen@acsvlegal.com
© 2023 ACS Legal Vietnam Company Limited – All rights reserved
This legal update is not an advice and should not be treated as such.
Download pdf: Management of Internet services and online information
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