1.Definition of Spam in Vietnam
In Vietnam as well as many other countries in the world, the activity of sending spam is illegal and it is prohibited. Regarding to this matter, Vietnam Government promulgated the Decree No. 90/2008/ND-CP dated August 13, 2008 on anti-spamming (herein after referred to as “Decree No. 90/2008/ND-CP”) and the Decree No. 77/2012/ND-CP amending and supplementing some articles of the Decree No. 90/2008/ND-CP dated August 13, 2008 on anti-spamming (herein after referred to as “Decree No. 77/22012/ND-CP”).
According to the Item 1, Article 3 of the Decree No. 90/2008/ND-CP, Spam shall mean an electronic mail or text message sent to a receiver who does not want or has no duty to receive it according to law. Spam includes electronic mail spam and text message spam. We also would like to note that all advertising electronic mail or text messages in violation of the following principles regarding advertising electronic mails or text messages:
2.Principles of sending advertising messages and emails
a) The advertising emails and advertising messages may only be sent after obtaining an obvious prior consent from the receiver;
b) The sending of advertising emails or advertising messages must be immediately terminated when receiving the refusal from the receiver;
c) The advertising emails and advertising messages may only be sent from the electronic addresses and system prescribed by the Ministry of Information and Communications;
d) When sending advertising emails and advertising messages, the provider of advertising services must send their copies to the technical system of the Ministry of Information and Communications;
e) It is prohibited to send more than 01 advertising email with the same contents to an email address within 24 hours, unless otherwise agreed by the receiver;
f) It is prohibited to send more than 01 advertising message with the same contents to a telephone number within 24 hours, and only allowed to send such messages from 7:00 to 22:00 every day, unless otherwise agreed by the receiver;
g) The advertisement contents must be conformable with law provisions on advertising.
3. Requirements on advertising electronic mails
a) The subject matter must match the content, and the advertising content must comply with the advertisement law;
b) An advertising electronic mail must be marked;
c) There must be information on the advertiser;
d) In case of using an advertisement service, there must be additional information on the advertisement service provider;
e) There must be an opt-out function.
4. Requirements on advertising text messages
a) An advertising text message must be marked;
b) In case of using the advertisement service, there must be additional information on the advertisement service provider;
c) There must be an opt-out function under.
5. Principles of gathering and using electronic addresses for advertisement purposes
a) Electronic addresses may only be gathered for advertisement purposes upon the consent of owners of such electronic addresses.
b) The purpose and scope of use must be clearly stated when gathering electronic addresses.
c) Electronic addresses must be used for the purpose and within the scope already permitted by owners of such electronic addresses.
6.Sanctions applicable to the Sender of Spam (herein referred to as “Advertiser”) under Vietnam Law
If the advertisers violate any of such above regulations, details in the Circular No. 90/ 2008/ND-CP and the Circular No. 77/2012/ND-CP, they may be fined by the Specialized information and communication inspectors; Chief inspectors in provincial-level Information and Communication Services and the chief inspector of the Ministry of Information and Communication.
Some main sanctions can be applied to Advertiser:
a) A fine of between 20,000,000 VND and VND 40,000,000 shall be imposed for the following acts:
− Exchanging, buying, selling or spreading software to gather electronic addresses or the right to use such software;
− Using software to gather electronic addresses without the consent of their owners;
− Exchanging, buying or selling lists of electronic addresses or the right to use such lists for spamming purposes.
b) A fine of between VND 20,000,000 and VND 50,000,000 shall be imposed, for the following acts:
− Providing text message advertisement services without sufficient forms of receipt and processing of opt-out requests;
− Providing electronic mail advertisement services without sufficient forms of receipt and processing of opt-out requests
c) A fine of between VND 10,000,000 and VND 30.000,000 shall be imposed for the following acts:
− Failing to keep the advertising emails or messages for at least 60 days;”
− Failing to provide free mechanisms for receiving and processing notices of spam;
− Failing to keep the information about the registration for receiving advertisements, refusals, and confirmations of the refusals.”
− Failing to collaborate with domestic and foreign Internet service providers and text messaging service providers in restricting spam;
− Failing to promptly sending the confirmation of receiving the refusal from the receivers of advertising messages or emails;”
− Sending information confirming receipt of requests not to receive advertising electronic mails which fails to ensure requirements specified in Clause 4. Article 12 of this Decree:
− Sending information confirming receipt of requests not to receive advertising text messages which fails to ensure requirements specified in Clause 4, Article 16 of this Decree;
− Failing to take measures to restrict the number speed and frequency of text messaging from a single service user.
− Failing to provide free tools for preventing spam mails on the email server for users.”
d) A fine of between VND 20,000,000 and VND 40,000,000 shall be imposed for the following acts:
− Sending advertising emails or advertising messages without the consent from the receiver;
− Sending advertising emails or advertising messages from an electronic addresses or technical not in conformity with provisions of the Ministry of Information and Communications;
− Sending advertising emails or advertising messages, without sending their copies to the technical system of the Ministry of Information and Communications;
− Hiding the sender’s name and electronic address when sending emails and messages.
e) A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for acts of failing to supply information or supplying false information at the request of competent state agencies.
f) Fines of from 60,000,000 VND to 80,000,000 VND for illegally using the name or electronic address of another organization or individual when sending messages and emails.
In addition to such above fines, on the nature and seriousness of their violations, advertisers may be subject to temporarily suspending for 01 – 03 months, or permanently forbidding the advertising messaging, emailing, or information messaging services.
Ently forbidding the advertising messaging, emailing, or information messaging services.
