In brief
On 20 July 2021, the Government issued Decree No. 70/2021/ND-CP (“Decree No. 70“) amending certain articles of Decree No. 181/2013/ND-CP implementing the Advertising Law (“Decree No. 181“). In line with previous drafts, Decree No. 70 focuses on regulating cross-border advertising activities and revises the three main articles, Articles 13, 14 and 15, of Decree No. 181 accordingly. The amended Decree No. 181 will take effect on 15 September 2021.
Key takeaways
The requirement to have a local agency under Decree No. 181 is removed.
The requirement on self-censorship applicable to foreign advertising service providers operating from offshore (“Foreign Advertising Providers” or FRAP) proposed under previous drafts is removed.
The reporting requirement applicable to FRAPs proposed under previous drafts is removed.
In more detail
Notable definitions provided for under Articles 13.1 and 13.2 of Decree No. 181 as amended by Decree No. 70 (“amended Decree No. 181“) are as follows:
Cross-border advertising activities are now defined as the act of foreign organizations and/or individuals using websites to conduct advertising services from device systems located outside of Vietnam, for users in Vietnam, and generating revenue from Vietnam.
Websites conducting cross-border advertising services are defined as information systems using one or multiple websites in the forms of symbols, numbers, characters, images, sounds, and other forms of information with the purpose of providing to network users the services of storing; providing; using; searching; exchanging; and sharing information, images, and sounds; creating forums; and online chatting to provide advertising services.
Compared to the previous drafts and the pre-amendment version of Decree No. 181, we note the key changes as follows:
Removal of the requirement on local agency
Vietnamese organizations and individuals will no longer have to advertise their goods and services on foreign websites through a Vietnam-based advertising services provider (VASP). This also means that FRAPs can provide advertising services directly to Vietnamese-based customers without the involvement of any VASP.
No self-censorship
FRAPs will not be responsible for proactively monitoring and filtering out violating contents.
No reporting requirement
The obligation of submitting annual or ad hoc reports to the Ministry of Information and Communications (MIC) imposed on FRAPs under previous drafts is now removed. This obligation now lies with the VASPs if they work with FRAPs.
As a general rule, the amended Decree No. 181 requires FRAPs, onshore advertising service providers, onshore and offshore advertisement publishers and advertisers that are involved in cross-border provision of advertising services to follow Vietnamese regulations on advertising, regulations on cyber security and other regulations on management, provision and use of internet services and online information. In addition, these subjects must not cooperate in publishing advertisements with the websites of which the violations of laws have been announced publicly by the competent regulatory authorities via the MIC’s official portal.
Notably, FRAPs shall have the following obligations under the amended Decree No. 181:
1. Compliance with Article 13 of the Advertising Law
FRAPs have the following rights under Article 13.1 of the Advertising Law:
To make decisions on the forms and methods of advertising business
To be provided with accurate and truthful information from the advertiser about the advertised organizations, individuals, products, goods, services and the documents related to the advertising conditions
To participate in the formulation of the local advertising planning and receive information from local agencies in charge of advertising about the approved outdoor advertising planning
To request advertisement appraisal
FRAPs’ obligations under Article 13.2 of the Advertising Law include:
To operate within the business lines specified in the business registration certificate and observe the legal provisions on advertising
To examine the documents related to the advertising conditions of the advertised organizations, individuals, products, goods and services, and implement the relevant procedures under the advertising contract
To be responsible for the advertisements made by themselves
To provide documents related to the advertisements at the request of the advertisement receiver or competent State agencies
2. Notification to the MIC
Fifteen days prior to the commencement of cross-border advertising services in Vietnam, FRAPs must notify the MIC of their contact information with the following details:
Its registered name, transaction name, address of its head office where it has registered to provide advertising services
Physical location of the main server system hosting the service and the main server system located in Vietnam (if any)
Contact point: name of the representative organization or individual in Vietnam (if any), email address and telephone of that contact point
This notification must be sent to the Authority of Broadcasting, Television and Electronic Information (ABEI) under the MIC directly in person, by post or via electronic means. However, the notification form is not included in Decree No. 70.
3. Advertisement placement
FRAPs must not place advertising products/advertisements with illegal content, i.e., content that violate Article 8.1 of the Cybersecurity Law and Article 28 of the Intellectual Property Law.
4. Compliance with the requests issued by the MIC and competent regulatory authorities
FRAPs must comply with the following requests of the MIC and other competent regulatory authorities:
Takedown requests (TDRs) in writing or electronic forms
Specifically, FRAPs must block and take down a violating advertisement within 24 hours upon request. After this time frame, if the violating advertisement is not taken down, the MIC will implement necessary measures to block such violating advertisement.
In case a violating advertisement affects national security, relevant competent authorities may apply immediate measures to block such advertisement. Such immediate measures may be lifted only when FRAPs comply with the MIC’s TDR for the advertisement in question.
Request for Information (RFI)
FRAPs are obligated to provide information on any organization or individual engaged in its cross-border advertising activities upon receiving an RFI from the competent authority stating that there are signs of potential violations of such organization or individual. No specific/fixed time frame is set out for completion of such request.
5. Obligations to advertisement publishers and advertisers
When contracting with a FRAP, advertisement publishers and advertisers have the following rights and obligations:
Request such provider to refrain from placing their advertisements in violating content as prescribed in Article 8.1 of the Cybersecurity Law and Article 28 of the IP Law.
Request such provider to have technical solutions for them to control and remove illegal advertisements from the service system.
Source: CCIPV / Global Compliance News by Baker McKenzie