[Vietnam] AIC Submits Comments on draft decree amending Decree 72 on Management, Provision, and Use of Internet Services and Online Information (January 2022)

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The Asia Internet Coalition (“AIC”) has submitted comments and recommendations on the amended Decree on Management, Provision, and Use of Internet Services and Information Content Online (“Decree 72”).

We understand that the Decree 72 was part of a larger effort by Vietnamese authorities to develop policies and regulations for the Internet in Vietnam. However, while drafting the decree, underlying rules should promote online speech and encourage digital platforms, both global and domestic, to participate in Vietnam’s digital economy.

Because of the reasons mentioned below, the AIC calls for further consultations with the industry to better understand intended policy objectives of the Decree. Some of the key points we would like to present through this submission are:

  • Enabling the free flow of data across borders is crucial for ensuring that Vietnam meets its strategic economic policy goal of becoming a US $52 billion digital economy by 2025. However, the Data localization requirements particularly in Article 44.i.3 and 44.k.4 are disproportionate, unnecessary, in many cases technically infeasible for global entities to comply with and contravenes Vietnam’s international commitments to not impede cross-border trade.  The provisions in aforementioned Articles will lead to unintended consequences, whereby Vietnamese companies will likely be deprived off from the services that they are already using to serve both Vietnamese and international customers. Localization requirements will cause significant service disruption and could arrest entire domestic and international business models, especially given that many MSMEs and start-ups are only beginning to recover from the impact of pandemic on their businesses. Given that other laws already govern cybersecurity or data protection aspects of such data, we respectfully request further explanation of the legal basis and policy intent behind this proposed amendment.
  • The amendments to Decree 72 (or Draft 1.3) has maintained – and in some cases exacerbated – the overly prescriptive, expansive, and at times ambiguous provisions of the previous draft, for e.g., the unfettered expansion of takedown authority (Article 22.2 (a)), or the ambiguous concept of multi-service online platforms (Article 23.6 (dd)). These provisions (as well as those outlined below) will stifle the current pace of Vietnam’s digital growth and will undermine the Government’s aim to achieve digital transformation by 2030 (e.g., under Decision 749/QD-TTg).
  • Other obligations are simply impossible for companies to comply with. For e.g., short 3-hour or 24-hour turnaround times for regulator takedown requests (Articles 22.3(b), 22.3(dd) and 22.5)) would be operationally unfeasible. Proactive screening of billions of pieces of content would be operationally and technically burdensome. Furthermore, the provisions requiring a content cooperation agreement with local media (Article 22.3(c)) and child protection measures (Article 44d.2) remain unclear and unfeasible to comply with. As this Decree cannot be feasibly implemented, it will only work to dis-incentivise compliance and will be difficult for MIC to enforce.
  • As the proposed amendments are extensive and would require significant technical and operational changes, we recommend a transition period of at least 24 months be provided.