Auction and sale of “.vn” Internet domain names

After more than 5 years, a regulations on auction and sale of Internet domain names in Vietnam is finally issue last month. In 2009, the Law on Telecommunications first contemplate the ability to transfer internet domain names in Vietnam. However, due to lack of implementing regulations, few transfers have occurred. Under Decision 38/2014 of the Prime Minister. 

Auction of the rights to use Internet domain name

• Internet domain name subject to auction are those having high demand for usage and subsequently approved by the MIC. Auction of the rights to use Internet domain name may be conducted directly or via the specific website established by the MIC for auction (“the Website”). Registrations to auction must be made via the Website.

• Before making a bid, participating individuals and organizations are required to pay a deposit amounted from 1% - 15% of the starting price as specified in the auction invitation notification and announced on the websites of MIC and Vietnam Internet Network Information Center. Only those having paid the deposit at least 15 working days before the auction date are allowed to make a bid at the auction.

• Payment of the winning price (after deduction of the deposit) must be paid to designated account of MIC within 15 working days from the date of notification of auction result.

Transfer of the right to use Internet domain name

• Restrictions on transfer are applied to (i) domain names being the names of state agencies, Party organizations or other domain names relating to national interests as specified by the MIC, and (ii) domain names under disputes or temporary suspension from usage.

• Transfer of Internet domain names are completed through relevant internet domain service providers in accordance with regulations of the MIC.

•  Transfer of Internet domain names which have been auctioned by the MIC must be approved by the MIC. 

Music or movies on-demand streaming or webcast in Vietnam

Online streaming or providing webcast of music or movies starts becoming popular in Vietnam. This could raise some interesting points from copyright law perspective. A broadcaster under the Intellectual Property Law may broadcast music without obtaining approval of the relevant right holders as long as the broadcaster pay certain royalty fees to the copyright holder. It is not clear if a provider of online streaming or webcast of music or movies could qualify as a broadcaster under the Intellectual Property Law. This is because:

• “Broadcasting” is defined as the transmission of sound or image or both sound and image of a work, performance, audio and visual recording or broadcast to the public by wireless or landline means including satellite transmission, in such a way that the public may access such work from any place and time the public select. It is not clear if the delivery of a musical recording through the internet could qualify as the transmission of a recording by wireless or landline means. The Intellectual Property Law seems to distinguish the internet from wireless or landline means. However, Decree 100 seems to consider the internet as a part of wireless or landline means; and

• Broadcasting organisation is defined as the organisation which initiates and carries out broadcasting. In the case of on-demand music service, it is not clear whether the service provider or the end-user could be considered as the organisation which initiates the broadcast.

Applicability of Vietnamese Internet Regulations to foreign website

An offshore website may be subject to Vietnamese internet regulations in certain cases. In particular,

• under Decree 72/2013, foreign organizations and individuals must comply with applicable Vietnamese laws in case public information provided by such foreign organizations and individuals involve users in Vietnam or access from Vietnam.  Public information is defined as information which is stored, transmitted, collected and processed via the network and made public to all entities without the need to identify specific name or address of such entities; and

• an offshore website which provides a platform to connect Vietnamese users or to allow Vietnamese users to share information may be subject to regulations on social network in Vietnam. 

Privacy law in Vietnam – Website users’ information

Users’ information as personal information

Under Vietnamese laws, users’ information such as names, email addresses, passwords and date of birth could be classified as “personal information” (thông tin cá nhân). In particular,

(a)          Under Decree 72/2013, personal information is defined as information  which  is  attached  to  the  identification  of  the  identity  and personal  details  of  an  individual  including name,  age,  address,  people's  identity  card  number, telephone number, email address and other information as stipulated by law;

(b)          Under Circular 25/2010,  personal information means information sufficient to precisely identify an individual, which includes at least one of the following details: full name, birth date, occupation, title, contact address, email address, telephone number, identity card number and passport number. Information of personal privacy includes health record, tax payment record, social insurance card number, credit card number and other personal secrets.  Circular 25 applies to the collection and use of personal information by websites operated by Vietnamese Government authorities. Circular 25 is not directly applicable to the collection and use of personal information by websites operated by non-Government entities. However, the provisions of Circular 25 could be applied by analogy. In addition, it is likely that a non-Government entity will be subject to the same or more stringent standards than those applicable to a Government entity; and

(c)           Under Decree 52/2013,  personal information is information contributing to identifying a particular individual, including his/her name, age, home address, phone number, medical information, account number, information on personal payment transactions and other information that the individual wishes to keep confidential, excluding work contact information and other information that the individual himself/herself has published in the mass media.   

Users’ information as “secret of private life”

The Civil Code provides that an individual’s rights to “secrets of his/her private life” (bí mật đời tư) must be respected and shall be protected by law”. The Civil Code does not define what constitutes a secret of private life. However the following provisions may shed some lights on the meaning of secret of private life:

(a)          Decree 185/2013  defines “personal secrets” of a consumer to mean information pertaining to personal consumers in which consumers or relevant organizations or individuals have applied security measures, if such information is disclosed or used without their prior consents, such disclosure or use will cause negative effects on their health, lives, properties or other physical or mental damages to consumers.

(b)          Decree 52/2013 seems to suggest personal secrets to mean personal information that the relevant person wishes to keep confidential; and            

(c)           Circular 25/2010 considers health record, tax payment record, social insurance card number, credit card number and other personal secrets to be personal secrets.

In addition, in Vietnamese, the word “secrets” (bí mật) is usually understood as something which is being kept confidential and which is not disclosed to outsiders.  The word “private life” (đời tư) is usually understood as something that relates to one person only rather than things that are public or known to others.

In light of the above, if the user does not take measures to keep his user’s information confidential then such information may arguably not be regarded as “secrets of private life”. If this were the case, they would not be subject to the protection conferred by Article 38.1 of the Civil Code. In practice, other than passwords, an individual generally does not keep his/her name, email addresses or, except for very limited circumstances, date of birth confidential. Therefore, in general, passwords could be considered as secret of private life.

Users’ information as State secret

The Ordinance on State Secrets  defines State secrets as “information on cases, affairs, documents, objects, venues, time, speech, carrying important contents in the fields of politics, national defense, security, external affairs, economy, science, technology and other fields, which the State does not publicize or has not yet publicized and the disclosure of which will cause harm to the State of the Socialist Republic of Vietnam”. The definition of State secrets is very broad and general may cover certain personal information of certain individuals. For example,

(a)          unpublished details of high ranking State and political leaders may be regarded as “top secrets”; 

(b)          “information concerning deposits and other deposited property of customers at credit institutions”, and “customer codes used for identifying individual payment cards of the payment card users, credit cards and other types of cards used in banking operations; and passwords of computer users for remote access systems in banking sectors may be regarded as secret;  and

(c)           personal data of various State officials (especially those at high level positions or those working in sensitive sectors or organizations) may be regarded as secret.

Therefore, in theory, in certain limited scenario, website users’ information collected by a website operator may constitute State secret under Vietnamese law.