You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

February 8, 2023

Vietnam’s Personal Data Protection Decree Takes Important Step Toward Issuance

Subscribe to Updates

Government Approves Legislative Dossier

On February 7, 2023, the Vietnamese government issued Resolution No. 13/NQ-CP (“Resolution 13”) to approve the latest version of the draft Personal Data Protection Decree (“Draft PDPD”)—a draft which has not yet been made public.

Similar to Resolution No. 27/NQ-CP issued in March 2022 approving the previous version of the Draft PDPD (“Resolution 27”), Resolution 13 stipulates the different cases where data subjects’ consent is exempted for processing personal data. Most of these lawful bases are similar to those under Resolution 27—except for the fourth case, which is brand new—with some changes for better clarity.

According to Article 1 of Resolution 13, personal data can be processed without consent in the following five cases:

(1) The processing is to protect the life and health of the data subject or others in an emergency situation. Data Controllers, Data Processors, Parties Controlling and Processing Personal Data, and Third Parties are responsible for proving this case;

Remarks: Vietnamese law, including the prior published version of the Draft PDPD, has never used the terms “data controller”, “data processor,” and “parties controlling and processing personal data.” The inclusion of these terms suggests that the latest version of the Draft PDPD has adopted the GDPR-like concepts of “data controller” and “data processor.” However, until the latest version of the Draft PDPD can be assessed, it is uncertain how these concepts are defined and whether they are fully in line with GDPR definitions.

(2) The disclosure of personal data is in accordance with the law;

(3) The processing of data is performed by competent state agencies in the event of a state of emergency related to national defense, national security, social order and safety, major disaster, or dangerous epidemic; when there is a threat to security and national defense but not to the extent that a state of emergency must be declared; or when the processing is to prevent and combat riots and terrorism, crime, and law violations in accordance with law;

Remarks: This expands the list of situations where the data subject’s consent is exempted compared to a similar criterion in Resolution 27, which simply mentioned “national defense and security requirements.”

(4) The processing is to fulfill the contractual obligations of the data subject with relevant agencies, organizations, and individuals as prescribed by law;

Remarks: Under current legislation, consent is exempted when personal data is used for signing, modifying, or performing a contract to use information, products, and services in the network environment between the data subject and an IT/e-commerce trader/service provider. This basis for consent exemption is stipulated under the Information Technology Law and Decree 52 on E-Commerce.

This new basis under Resolution 13 has been broadened to include the processing of personal data for performing any types of contracts involving the data subject as a party. These contracts may include employment contracts and contracts for purchase of goods/services outside the IT/e-commerce context.

The Draft PDPD seems to have adopted the lawful basis under Article 6.1(b) of GDPR: “processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.” Interestingly, the basis of processing for “legitimate interests of the controller or third party” under the GDPR does not appear in Resolution 13. As the Vietnamese legislator has always refused to adopt this basis into the Vietnamese data protection regime, it is unlikely to be covered by the Draft PDPD.

The wording of this newly added criterion is rather broad and subjective. It is unclear what could be considered necessary to “fulfill the contractual obligations,” and whether this criterion could be interpreted broadly enough to cover “legitimate interests” of the employer/service provider when implementing contractual obligations with data subjects.

If there is no further guidance on this criterion, we believe that it would be open to the authority’s discretion in interpretation and the arguments of the parties on a case-by-case basis.

(5) The processing is to serve the activities of state agencies prescribed by sector-specific laws.

Remarks: Resolution 27 included the criterion “the processing is for competent state agencies’ investigation and handling of law violations,” which has been removed from Resolution 13. It could be argued, however, that this criterion under Resolution 13 is sufficiently broad to cover the same cases.

Review by the National Assembly

Following the issuance of Resolution 13, on February 8, 2023, the National Assembly’s Committee for Defense and Security held a plenary meeting to review and discuss the newly approved Draft PDPD. According to media reports recapping the discussion, most of the delegates attending the meeting believed that this version of the Draft PDPD had been prepared quite thoroughly, with due consideration of opinions contributed by other state agencies and the public during the consultancy phase. However, given the significance of the PDPD, which covers novel issues that have rarely been tested in practice, the Draft PDPD was still subject to extensive comments from the delegates in the meeting, and possible further review by the Committee for Defense and Security.

What’s Next for the Draft PDPD?

Resolution 13 approves the content of the government’s report on the Draft PDPD, the report on collecting and considering opinions of the Standing Committee of the National Assembly, and the content of the latest version of the Draft PDPD; and assigns the Minister of Public Security, on behalf of the government, to report on and consult with the Standing Committee on the Draft PDPD. This means the resolution works as direction and approval of principles for key issues so that the Ministry of Public Security can complete the Draft PDPD for the Standing Committee’s approval before its eventual promulgation.

According to Article 2 of Resolution 13, as the next step, the Minister of Public Security will have to consult the Standing Committee of the National Assembly on the new version of the Draft PDPD. No specific timeline for promulgation has been announced. Following the review session by the Committee for Defense and Security, the Ministry of Public Security will need to consider the opinions of the delegates in the session and update the Draft PDPD accordingly, before submitting it to the Standing Committee.

Related Professionals

Industries

Technology

Location

RELATED INSIGHTS​ 

July 31, 2023
Vietnam’s Decree No. 72/2013/ND-CP, as amended by Decree 27/2018/ND-CP (referred to collectively as “Decree 72”) regulates internet services and online information, and plays a crucial role in governing significant services such as social networks, online games, and aggregated information websites, as well as key matters like domain names and online information security. Given the rapid pace of development in these areas, Decree 72—having been in effect for nearly a decade—is in need of an update. The Ministry of Information and Communications (MIC) had initially intended to draft an amendment to Decree 72 in 2021. However, the magnitude of required changes made it impractical to retain the form of an amending decree, leading the MIC to shift its focus toward replacing Decree 72 entirely. As a result, a new draft decree to replace Decree 72 (the “Draft Decree”) was released by the MIC for public consultation from July 17 to September 15, 2023. The Draft Decree is comprehensive, with six chapters, 87 articles, and an appendix of 56 forms. The following are some of the main issues covered by the new Draft Decree. 1. Social Network Services Classification and licensing/notification Social network services include onshore and offshore social network services. Onshore social network services refer to those provided by organizations or enterprises with legal status in Vietnam, and are divided into “high-visitor” or “low-visitor” categories based on number of regular visitors. The high-visitor category includes social networks with total visits of 10,000 or more per month for six consecutive months or with more than 1,000 regular members in a month. High-visitor onshore social network service providers must obtain a license to provide social network services. Low-visitor onshore social network service providers only need to notify the MIC’s Authority of Broadcasting and Electronic Information (ABEI) and receive the ABEI’s written notification
Read More
July 28, 2023
Myanmar’s Ministry of Commerce (MOC) issued three notifications related to e-commerce on July 21, 2023, classifying online retail businesses as essential services, requiring them to register with the relevant authorities, and setting the criteria for their registration. Under Notification No. 49/2023 the MOC authorized the Department of Trade (DOT) to issue notifications, orders, and directives relating to online retail businesses. This was followed by Notification No. 50/2023, which classifies online retail businesses as essential services under the Essential Supplies and Services Law and requires them to register with the DOT within six months of the issuance of the notification (i.e., by January 21, 2024). Failure to register within the specified period will be punishable by imprisonment for six months to three years and a fine of up to MMK 500,000 (approx. USD 238). Finally, under Notification No. 51/2023, the MOC set out the criteria and requirements for the registration of online retail businesses by entities, business institutions, and individuals, as well as the duties and liabilities of sellers and consumers. Pursuant to this notification, registration should be completed via the DOT’s online system, fees must be paid digitally, and electronic registration certificates will be issued. Certificates are initially valid for two years, and can be renewed. The MOC will provide information at a later time on the prescribed forms, certificate format, registration and online fees, and online registration portal. In applying for registration, an entity or business institution established under the Myanmar Companies Law, Special Company Act, Co-operative Society Law, or any other existing Myanmar laws must have a website with its own domain name or an online channel with an exact address that is used for online sales and a registered business address within Myanmar. Individual applicants must be at least 18 years old, reside in Myanmar, and
Read More
July 26, 2023
Thailand’s Electronic Transactions Development Agency (ETDA) held a briefing session on July 20, 2023, laying out the changes and new requirements in draft sublaws under the Royal Decree on Digital Platform Services. These sublaws are expected to be announced in August 2023. The key changes and new requirements are listed below. The ETDA has drafted guidelines on the methods for identifying active users to give digital platform service operators a better understanding of the calculation methods. The definition of “users” for calculating annual monthly active users (AMAUs) has been reduced in scope to cover only users in Thailand. E-marketplace digital platform services that will suspend or terminate operations for specific users must inform the affected users and provide a period for them to challenge the suspension or termination. Digital platform service operators cannot use the requirements to identify their active users as a legal basis for processing users’ personal data, especially for profiling and tracking activities. The sublaws on announcement of terms and conditions (T&Cs) and changes to T&Cs, once issued, will take effect on January 3, 2024, while the other sublaws will take effect immediately (i.e., August 21, 2023). This shows that the ETDA has acknowledged the private sector’s feedback that the requirements on T&Cs will take more time for operators to comply with. The requirements for changing T&Cs have been adjusted. Under the current draft, the required advance notification period can be exempted if a change in the T&Cs is for the purpose of, for example, rolling out new products or services and improving the platform. Required submissions under the Royal Decree for Digital Platform Services and its sublaws will be made through the ETDA’s online portal. There will likely be no extensions granted for compliance with the Royal Decree for Digital Platform Services and its sublaws
Read More
July 14, 2023
The Bank of Thailand (BOT) has issued new notifications amending regulations for payment businesses that fall under the Payment Systems Act B.E. 2560 (2017) to promote transparency and good governance in the payment industry. Notification No. SorKorChor 2/2566 (“Notification 2”) increases the required qualifications for applicants seeking a license to provide payment services designated as being under the BOT’s supervision, and Notification No. SorKorChor 4/2566 (“Notification 4”) stipulates additional duties and exemptions for certain types of business operators. The notifications were published in the Government Gazette on July 7, 2023, and came into effect the following day. Additional Qualifications Notification 2 expands the list of prohibited characteristics for business operators applying for a license or registration to engage in a designated payment service, and their directors. For example, applicants must not have been ordered to suspend or cease their operations, and their registration or license to engage in financial business or operate a designated payment system or service must not have been revoked. The notification defines “financial business” as including financial institutions, credit card business, personal loan business, securities business, and so on. In addition, applicants’ directors and management must not have prohibited characteristics, such as being involved in the management of a financial business or designated payment system or service that was ordered to suspend or cease its operations. The applicable registration or license also must not have been revoked. Reporting Requirements During the application process, Notification 2 requires applicants to disclose information on shareholders and related parties (including spouses) who hold an aggregate 10 percent or more of the total paid-up shares. Notification 4 imposes this same reporting duty regarding shareholders and related parties but applies it to licensed operators in an ongoing manner. Existing payment service operators must make their first report of this information to
Read More