In August 2020, the Government passed a new Decree 91/2020 to govern all forms of advertising via telecommunications means such as SMSs, e-mails, and phone calls. Decree 91/2020 will take effect from October 2020 and replace Decree 90/2008. Decree 90/2008 used to only impose restrictions on marketing text messages and e-mail (but not telephone). However, Decree 91/202 now introduces a range of new restrictions on telemarketing activities and corresponding sanctions. Texts, emails, or phone calls that are not compliant with these requirements will be deemed spam. In this post, we briefly discuss some notable points of Decree 91/2020.

Requirements for prior consents of the targeted consumers

Under Decree 91/2020, telemarketers are not permitted to make any marketing calls before obtaining the prior consent of the targeted consumers. Decree 91/2020 abolishes the “opt-out” regime where a marketer can consider the lack of response from a targeted customer as consent for receiving advertising messages.

A consumer may give his/her consents in one of the following ways, among other things:

The consumer pro-actively accesses to marketers’ websites, online apps, social platforms, or send a message or place a call to marketer’s telephone switchboards to register for receiving marketing texts, calls, and e-mails; or
The consumer replies to a Registration-of-advertisement SMS (Tin nhắn đăng ký quảng cáo) sent by the marketer. The marketer can only send such a message to a customer for the first time and for once only. Content of the Registration-of-advertising messages must comply with specific instruction of the competent authority, however, at the time writing this post, there has been no further guide.

Consumers can now report spam SMSs, calls, or emails to a system maintained by the Ministry of Information and Communication (MIC) or to the relevant telecommunication service providers. Furthermore, Decree 91/2020 obliges telecommunication and Internet entities to develop and adopt professional methods to detect spam texts, calls, e-mails and report to MIC afterwards.

Establishment of a nationwide “DoNotCall” list

Decree 91/2020 mandates the establishment of a nationwide “DoNotCall” list maintained by the Ministry of Information and Communication (MIC). The “DoNotCall” list includes numbers of consumers who do not accept any Registration-of-advertisement messages, marketing texts, and marketing calls. Every telemarketing contents which are sent to mobile numbers on the list are deemed spam and the telemarketer will be fined from VND 80 to 100 million.

Other requirements

The content of marketing texts must comply with requirements on the format and content of the law. Prominently, every marketing text must include opt-out instruction and two means for a consumer to opt-out, which are texts and phone calls.
Decree 91/2020 sets limits on times and the number of calls and texts that marketers may make and send to a consumer. Specifically, telemarketers must not send more than three texts and calls more than once in a day, are only allowed to send texts between 7 am and 10 pm and call between 8 am to 17 am.
A marketer must apply for an identification name from the MIC. Without a valid identification name, telemarketers are not allowed to conduct telemarketing activities.
Telemarketers must establish systems for (i) receiving rejection of Registration-of-advertisement messages; and (ii) database to store rejection and confirmation of rejection from consumers.

Sanctions for contravention of Decree 91/2020 include monetary administrative punishment ranging from VND 5 to 100 million; suspension of providing services for 01 to 03 months and confiscation of identification name use right for 01 to 03 months.

This post is written by Dang Ngoc Linh and edited by Nguyen Quang Vu

Vietnam Business Law