New highlights on provision of cross-border advertising services in Vietnam under Decree no. 70/2021/ND-CP
LexNovum Lawyers
01/12/2021
New highlights on provision of cross-border advertising services in Vietnam under Decree no. 70/2021/ND-CP
Before the increasingly strong development as well as the situation of violations of regulations on information and advertising, ect from cross-border advertising platforms as websites, on July 20, 2021 the Government issued Decree No. 70/2021/ND-CP (“Decree 70”) to amend and supplement some articles of Decree No. 181/2013/ND-CP guiding the Law on Advertising (“Decree 181”), specifically regulations on business of cross-border advertising services in Vietnam. Decree 70 shall take effect from September 15, 2021. Here are some of the new highlights:
1. Clarifying the concept of “provision of cross-border advertising service in Vietnam” and supplementing the concept of “cross-border advertising service provision websites”, specifically:
– “Provision of cross-border advertising services in Vietnam” is that foreign organizations and individuals use websites providing advertising services from service providing equipment systems located outside of Vietnamese territory, for user in Vietnam and earning revenues in Vietnam.
– “Cross-border advertising service provision websites” mentioned in this Decree are information systems using one or more than one website in the form of symbols, numbers, letters, images and sounds and other forms of information to provide network users with services of information storage, provision, use, search and exchange, sharing of sounds and images, and creation of online chats and forums to provide advertising services.
2. Notifying the contact information to the Ministry of Information and Communications
According to the adjustment content in Decree 70, the Ministry of Information and Communications is the focal point in managing cross-border advertising activities. 15 days before advertising, foreign organizations and individuals doing cross-border advertising business must notify contact information to the Department of Radio, Television and Electronic Information – Ministry of Information and Communications (instead of having to notify in writing to the Ministry of Culture, Sports and Tourism as prescribed in Clause 2, Article 14 of Decree 181) directly, by post, or by electronic means with the contents as follow:
– Organization name, business name, address of headquarters where advertising service provision is registered; locations of main server system used for service provision and server system in Vietnam (if any); and
– Contact point: name of representative organization or individual in Vietnam (if any), email address and phone number;
3. Supplementing and clarifying regulations that domestic and foreign advertising service Providers must comply
Decree 70 stipulates that domestic and foreign advertising service Providers participate in activities of providing cross-border advertising services in Vietnam must comply with the regulations of Vietnamese law on advertising, cybersecurity and management, provision and use of Internet services and online information; must pay tax in accordance with tax laws.
Foreign organizations and individuals involved in provision of cross-border advertising services in Vietnam, in addition to complying with the rights and obligations specified in Article 13 of the Law on Advertising and the responsibility to notify the contact information with the Ministry of Information and Communications under Section 1 above, must also comply with the following regulations.
– Do not place advertising products on illegal contents mentioned in Clause 1 Article 8 of the Cybersecurity Law and Article 28 of the Law on Intellectual Property.
– To prevent and remove illegal advertising (within 24 hours) at the request of the Ministry of Information and Communications.
In addition, Decree 70 also requires advertising service Providers to have technical solutions so that advertising Publishers and Advertisers in Vietnam can control and remove advertisements against Vietnamese law on service provision systems and not cooperate in publishing advertising products with websites that have been marked as violating against the law by competent authorities on the electronic portal of the Ministry of Information and Communications (Clause 5 and 6, Article 13 of Decree 70).
4. Specific regulations on handling in case foreign organizations and individuals fail to comply with Vietnamese law on advertising
According to Decree 70, within 24 hours after receiving a request from the Ministry of Information and Communications, foreign organizations and individuals providing cross-border advertising services shall handle infringing advertisements as requested. After the above-mentioned time limit, if foreign organizations and individuals fail to handle infringing advertisements as required without a legitimate reason, the Ministry of Information and Communications shall take measures to prevent the illegal advertisement.
In case of detecting cross-border advertising in violation of the law threatening Vietnam’s national security, competent Vietnamese authorities shall immediately take measures to prevent illegal advertising.
It can be seen that these updated regulations will create a legal basis to strictly manage the responsibilities of parties involved in providing cross-border advertising services, especially regarding censorship, blocking and handling violations. However, experts are also concerned that it is difficult to handle infringing advertisement on cross-border platforms within 24 hours because of a series of barriers related to information reception, notification process, infrastructure – technology, ect
5. Advertising service Providers must submit annual reports before December 31, or submit ad-hoc reports upon request
According to Decree 181, when executing contracts to provide advertising services on the website of foreign organizations and individuals that provides cross-border advertising services in Vietnam, the advertising service Provider must have responsibility for submit periodic reports every 6 months on the provision of advertising services to the Department of Culture, Sports and Tourism where the advertising service Provider is headquartered under the form provided by the Ministry of Culture, Sports and Tourism or ad hoc reports at the request of competent authorities.
From September 15, 2021, domestic advertising service Providers who cooperate with foreign organizations and individuals in providing cross-border advertising services in Vietnam must:
– Submit annual report (before December 31); or
– Submit ad-hoc reports upon request on the provision of cross-border advertising services in Vietnam
The report is made under form No. 01 enclosed with Decree 70, which can be sent directly, by post or by electronic means to the Ministry of Information and Communications (Department of Radio, Television and Electronic Information).
6. There is no need to run advertisement through a registered advertising service Provider legally operating in Vietnam
According to the regulations of Decree 181, Vietnamese organizations and individuals who want to advertise their goods and services on such websites of foreign organizations and individuals trading in cross-border advertising services must through advertising service Providers that have been registered to operate legally in Vietnam without directly signing advertising contracts with overseas advertising Publishers. However, this content is no longer regulated in Decree 70. Therefore, from September 15, 2021, Advertisers can directly sign advertising contracts with foreign organizations and individuals doing business cross-border advertising services such as Google, Facebook, Youtube, ect.
For detailed information on the content of the change, please refer to Decree 70/2021/ND-CP.
Executor: Oanh Huynh – LexNovum Lawyers
