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In a competitive market, advertising is crucial to help enterprises reach the right audience with targeted messaging eventually converting them into paying customers. According to the 2021 Vietnam Digital Marketing Trends report, spending on online advertising in Vietnam exceeds one billion USD per year. As technologies advance, geographical barriers between people are getting blurred, and companies are expanding globally to find new markets and increase revenue potential. Advertisements have thus been offered on a cross-border basis to achieve this aim.
Legislative and enforcement trends in Vietnam
The blooming of the advertising industry has indeed triggered concerns related to misleading or otherwise unethical advertising practices. In an attempt to address this issue, Vietnam in 2021 issued Decree No. 70/2021/ND-CP (“Decree 70“), mainly regulating the cross-border provision of advertising services. Notifying State agencies of certain contact details and taking down infringing content upon requests are two notable obligations imposed by Decree 70 on offshore advertising service providers.
Although Decree 70 has taken effect since 15 September 2021, compliance with the obligations stipulated therein remains insufficient. In a recent conference hosted by the Ministry of Information and Communications (“MIC“), it was reported that only nine offshore enterprises had notified their contact details to the MIC. The Head of the Authority of Broadcasting and Electronic Information (“ABEI“) even explicitly named several tech giants failing to obey this notification duty. The agency expressed its intention to block these companies’ business in Vietnam should the companies keep avoiding the law.
The issue of placing advertisements on infringing content was also scrutinized during the conference. On a related note, the MIC in September 2022 published a list of 48 websites showing signs of law infringement with which companies are not permitted to cooperate in running advertisements. The MIC planned to expand such a “blacklist” to cover not only illegal websites but also social network accounts and content channels.
The above is not the only indication of Vietnamese authorities’ ambition to strictly administer this billion-dollar advert industry. In the early November’s Q&A session during which the Minister of Information and Communications was being inquired by the National Assembly deputies on matters under his governance, deceptive advertisements were heavily deliberated and, to respond, the Minister announced the plan to inspect major cross-border platforms in 2023 to ensure they adequately fulfilled their responsibilities when doing business in Vietnam.
Deciphering Decree 70’s notification requirement
Non-compliance with a legal requirement might stem from, among other reasons, companies’ miscomprehension of the law. Thus, making sense of the applicable obligations is essential. Below are how certain provisions concerning Decree 70’s notification requirement should be interpreted:
Firstly, when a foreign advertising service provider places multiple servers in Vietnam to render the advertising service, the location of all these servers must be notified to the MIC. The issue of insufficient notification of all servers located in Vietnam was highlighted in the mentioned MIC’s conference. If companies do not re-notify to accurately reflect the number of local servers, the ABEI will request the data center service provider/ISP to stop providing services to these companies (i.e., stop allowing such companies to place their servers in data centers in Vietnam).
Secondly, as Decree 70 does not specify that the point of contact must be located in Vietnam, notifying the MIC of the contact details of a personnel in charge of compliance sitting abroad should suffice. In case the designated personnel resides in Vietnam, their contact shall be included in the notification as well.
Thirdly, there is currently no submission form that must be used for this notification procedure. Companies can choose to submit the required information using their own templates via the following channels:
Conclusion Given local authorities’ determination to strictly enforce Decree 70 against offshore advertising service providers, it is highly suggested that companies promptly comply with applicable advertising requirements to avoid the risk of facing adverse enforcement actions. In case adequate compliance is yet to be feasible, an exchange of notice with a competent authority explaining the situation will be more preferred.
Content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee similar outcomes. For more information, please visit: www.bakermckenzie.com/en/client-resource-disclaimer.
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