Promoting the Digital Economy: Improving Regulatory Policies for Intermediary Digital Services in VietnamPromoting the Digital Economy: Improving Regulatory Policies for Intermediary Digital Services in Vietnam

Policy Context for Regulating Intermediary Digital Services in Vietnam

Vietnam has adjusted its legal policies to adapt to the Fourth Industrial Revolution. The country has enacted the 2022 Film Law, the 2022 Amended Intellectual Property Law, the 2023 Telecommunications Law, and the 2023 Electronic Transactions Law. In addition, lawmakers are drafting amendments to the 2012 Advertising Law. These changes reflect Vietnam's commitment to developing a comprehensive legal framework for intermediary digital services.

At the decree level, Vietnam has issued Decree 70/2021/ND-CP, amending Decree 181/2013/ND-CP in the field of advertising, and Decree 85/2021/ND-CP, amending Decree 52/2013/ND-CP in the area of e-commerce. The government is also preparing a new decree to replace Decree 72/2013/ND-CP concerning internet information management. However, there are still gaps in the legal framework, particularly related to intermediary digital services.

Challenges in Regulating Intermediary Digital Services in Vietnam

Vietnam has been connecting to international internet since 1997, but it was not until 2019 that the legal framework for digital services on the internet was amended to align with current conditions. However, this amendment has yet to meet the demands of a rapidly developing digital economy. The delay in updating regulations has created several legal gray areas that hinder the growth of intermediary internet services.

Legal Challenges

1. Lack of Clear Regulations

According to the 2006 Information Technology Law, the information technology industry includes hardware, software, and content industries (Article 47). Under Decree 71/2007/ND-CP, content industry activities encompass the production of digital content products and the provision of digital content services (Article 10). Digital content services are defined as “services provided in a network environment that directly support the production, exploitation, distribution, upgrading, warranty, maintenance of digital content products, and other similar activities related to digital content.”

The provisions in the 2006 Information Technology Law and Decree 71/2007/ND-CP indicate that regulators intend to distinguish between content production activities and the provision of services related to the exploitation, distribution, and storage of that content on the internet. However, the regulations do not clarify the intermediary nature of various digital services, which can easily lead to confusion with content provision services.

This may be one reason why Decree 72/2013/ND-CP on the management, provision, and use of internet services and information online treats intermediary services such as digital content distribution (app stores) and digital data search services (search engines) as providing digital information. This leads to digital intermediary service providers being subject to obligations similar to those of information providers, while they only provide the technological platform connecting users. The draft decree to replace Decree 72/2013/ND-CP continues to add new requirements for digital intermediary service providers to monitor user content, which could lead to liability for users’ infringing content.

2. Lack of Consistent Regulations

Preliminary statistics indicate that there are about 11 different legal documents that directly regulate the business conditions of intermediary digital services and approximately 26 different documents that govern the business activities of intermediary digital services in Vietnam. The 2006 Information Technology Law is the first legal document to regulate some types of intermediary digital services such as digital information transmission (Article 16), temporary storage of digital information (Article 17), leasing of digital information storage (Article 18), and digital information search tools (Article 19). However, this law does not provide a unified definition of intermediary digital services.

Intermediary digital services are understood differently by various regulatory agencies, leading to inconsistent regulations across different legal documents. For example, according to the Copyright Office of the Ministry of Culture, Sports and Tourism, services like search engines and social networks are categorized as intermediary services under the amended Intellectual Property Law 2022 (Article 198b) and Decree 17/2023/ND-CP, which details some provisions and measures for implementing the Intellectual Property Law regarding copyright and related rights (Article 110). Meanwhile, according to the Department of Radio, Television, and Electronic Information under the Ministry of Information and Communications, services like search engines and social networks are classified as services providing information on networks in the draft decree to replace Decree 72/2013/ND-CP. This draft is based on the 2006 Information Technology Law and the 2009 Telecommunications Law.

There is a contradiction regarding the obligations of intermediary digital service providers. Specifically, the 2023 Telecommunications Law states that businesses providing data center services and cloud computing services are not allowed to monitor user information, except at the request of competent state authorities as stipulated by law (Point g, Clause 2, Article 29). In contrast, the draft decree to replace Decree 72/2013/ND-CP requires these businesses to monitor user information on their technical infrastructure systems to remove legally infringing information (Point a, Clause 3, Article 82). Essentially, businesses that lease storage space are considered intermediary service providers facilitating the storage and transmission of user-generated data and should not intervene in user content or bear responsibility for user content. Monitoring user information puts businesses at legal risk for joint liability with users posting infringing content and violates user privacy rights under the 2023 Consumer Protection Law and Decree 13/2023/ND-CP on personal data protection.

Policy Recommendations

To promote a more dynamic and effective digital economy, we propose the following recommendations to refine the regulatory policies for intermediary digital services in Vietnam.

1. Amend the 2006 Information Technology Law:

Amending the 2006 Information Technology Law is a crucial step towards streamlining regulations regarding intermediary digital services, ensuring a clear distinction between the roles and responsibilities of these service providers and traditional news publishers or content producers. The amended law should clearly state that intermediary digital service providers are not automatically legally responsible for potentially infringing content created by users. Additionally, it is important that these service providers are not imposed with obligations to proactively monitor or control user content on their platforms. Instead, the focus should be on promoting transparent accountability and greater cooperation between digital platform providers and regulatory authorities rather than imposing unreasonable technical requirements.

However, any move to amend this law must consider the political and institutional context in Vietnam. Although reforming the 2006 Information Technology Law is viewed positively by many policymakers, it faces challenges from the Ministry of Information and Communications. The 2006 Information Technology Law, as Vietnam's first comprehensive law regulating intermediary digital services, has provided the legal basis for subsequent regulations like Decree 72/2013/ND-CP and is still considered the central document in the governance of the country's internet. The Ministry of Information and Communications, as the state management authority in the digital technology sector, consistently strives to ensure that legal reforms continue to serve national priorities, including maintaining political stability and social order. In the current context, the Ministry has expressed concerns about the need for more effective and stricter oversight of sensitive information related to politics that could affect public opinion or national interests.

2. Adopt a Co-Regulation Approach:

Adopting a co-regulation approach in the design of legal regulations is necessary for effectively managing issues in cyberspace related to intermediary digital services, such as fake news, misleading advertising, incitement to violence, and hate speech. This approach emphasizes collaborative efforts, where government agencies develop principle-based regulations that establish clear guidelines to address these issues. Meanwhile, intermediary digital service providers have the role and responsibility to establish and enforce their internal policies, community standards, codes of conduct, and technical standards to ensure compliance with legal requirements.

A notable example of this approach is reflected in Australia's Online Safety Act 2021. This law establishes baseline expectations from the Australian Government for online service providers to proactively protect user safety on their platforms by requiring service providers to develop and register enforceable industry rules and standards. The law also promotes transparency and accountability by encouraging service providers to report on their compliance efforts through transparent reporting. This model emphasizes the importance of a harmonized legal framework in which both government oversight and self-regulation by businesses operate together to effectively address challenges in the online environment.

In regulating the market related to digital technology, Vietnam is at a crucial juncture—the choice to refine the legal framework for intermediary digital services will significantly impact the operation of the national digital economy. By addressing the current gray areas and implementing the proposed recommendations, Vietnam can enhance its digital ecosystem, ensuring it is both dynamic and sustainable. As the context continues to evolve, ongoing dialogue and cooperation between policymakers, intermediary digital service providers, and stakeholders will be crucial in shaping a legal environment that supports growth—balancing innovation with risk governance. The determination to create positive changes will not only strengthen Vietnam's position in the global digital economy but also pave the way for a more inclusive and equitable digital future.