To enforce more rigorous control of cross-border advertising activities, the Vietnamese government issued Decree No. 70/2021/ND-CP dated July 20, 2021 (Decree 70), amending and supplementing provisions of Decree No. 181/2013/ND-CP dated November 14, 2013, elaborating on some articles of the Law on Advertising. Decree 70 will take effect on September 15, 2021.
According to the Deputy Director of the Authority of Broadcasting and Electronic Information, Decree 70 will allow better control over a cross-border advertisement on platforms such as Facebook or YouTube. To that end, Decree 70 stipulates new obligations for these providers while also consolidating executive authority over cross-border advertising activities under the Ministry of Information and Communications (MIC).
Revised Obligations for Cross-Border Advertising Services
Significantly, Decree 70 overhauls Article 13, which provides the definitions and obligations for cross-border advertising service providers. Accordingly, cross-border advertising services are explained as the utilization of websites hosted outside Vietnam to provide ads targeted at Vietnamese consumers and obtain revenue in Vietnam. Notably, Article 13 defines such websites as a “single or multi-website system … providing users with services for storage, provision, use, search, or exchange of information, sound or image sharing, forum creation, or live chat to supply advertising services.” This would effectively encompass many types of online environments, specifically social network sites, such as Facebook.
In addition, more entities will be taxed on cross-border advertising revenue under Article 13, including not only service providers but also both domestic and overseas advertisers.
Under Decree 70, cross-border advertising services must comply with Vietnam’s cybersecurity and intellectual property laws in addition to the Law on Advertising. Decree 70 requires foreign providers of cross-border advertising services to supply the MIC with direct contact information 15 days before commencing cross-border advertising activities in Vietnam. Domestic advertising service providers that cooperate with foreign entities to provide cross-border advertising services in Vietnam must submit annual or ad hoc reports in a prescribed form as stipulated under the decree.
Service providers must also block and remove illegal or infringing content from their advertising platforms upon the MIC’s request, as well as supply information on organizations or individuals suspected of illegal online advertising activities.
Decree 70 also grants advertisers the right to demand that service providers not place advertising products in content that violates the law (particularly Article 8.1 of Cybersecurity Law and Article 28 of IP Law) and supply means for monitoring and removing illegal advertising content.
MIC’s Control over Cross-Border Advertising Services
In the past, cross-border advertising services were under the supervision and management of different authorities. Decree 70 revises this and consolidates all supervisory authority under the MIC. Departments and agencies of all levels must vigilantly detect illegal cross-border advertising activities and report to the MIC. Within a five-day window, the MIC will conduct investigations and notify service providers of the illegal ad content or activities that must be addressed or removed in 24 hours. If service providers fail to adhere to the MIC’s request, the MIC will take any appropriate legal measures to block the illegal advertisement. This authority is also extended to other competent agencies should the offense threaten Vietnam’s national security. It is unclear what the blocking measures would entail under Decree 70, and it will be interesting to see how this mechanism works in the future.
Source: Duc Anh Tran and Ha Thu Vu Huynh, Tilleke & Gibbins