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 12, 2023
On June 30, 2023, Vietnam’s Ministry of Information and Communications (MIC) issued Circular No. 06/2003/TT-BTTTT to provide implementing guidelines for Decree 71 on editing, ratings, and warnings for video on demand (VOD) sports and entertainment content provided over radio and TV services. Circular 06 will take effect on August 15, 2023. Because Decree 71 allows VOD providers to self-edit and self-rate this type of content, it is important for them to know how the process is regulated in order to fully comply before providing VOD sports and entertainment programs to Vietnamese users. Under Circular 06, radio and TV service providers are required to display ratings and warnings on their programs, following the principles set out in the circular. These service providers must also compile dossiers in a stipulated form on the editing, ratings, and warnings of their programs for reporting to the authority and inspection. The main contents of Circular 06 are as follows. 1. Content Editing The main principles for editing VOD sports and entertainment programs include: Protection of children and other vulnerable people from inappropriate or potentially harmful content. Removal of all illegal/prohibited content, as well as content related to controversial issues or issues not recognized by Vietnamese law. Removal of content or dialogue that disparages the origins of others or makes fun of others’ physical weaknesses, and content that is contrary to Vietnamese culture, morality and fine customs and traditions; Removal of programs if it is discovered during the editing process that in the program or at the venue of the event, there are images or activities violating the prohibitions of the law, violating Vietnamese fine customs and traditions, or containing sensitive political elements. In addition to compliance with the above-mentioned principles, sports and entertainment programs related to health, education, and online gaming must additionally meet
Read More
July 11, 2023
Can computer programs resolve legal disputes? For decades, the answer from much of the legal community has been no. However, developments in artificial intelligence (AI), and in particular natural language processing and machine learning, have led to renewed discussions of this possibility. Increasingly, tools are being developed to assist parties with litigation outcome prediction and judges with litigation outcome determination. However, while some argue that the use of AI in legal disputes can reduce the length of proceedings, cut costs, and improve access to justice, others raise concerns that “black box” AI systems could reduce transparency, entrench bias, and harm the development of the law. Litigation Outcome Prediction The use of computers to predict the outcome of legal cases is not new. As early as the 1980s, researchers developed outcome prediction tools, often in the form of decision-tree algorithms. However, developments in AI have allowed the creation of more sophisticated prediction models. In 2017, a model built by Katz et al. predicted US Supreme Court decisions with an accuracy of 70.2%, while in 2019, a model built by Medvedeva et al. predicted decisions of the European Court of Human Rights with an accuracy of 75%. In various studies, AI tools have been able to predict case outcomes more accurately than expert lawyers. Companies such as Solomonic and Lex Machina, owned by LexisNexis, now provide commercial litigation prediction and analytics tools. Outcome prediction tools can be used by parties and their legal representatives to craft arguments and facilitate settlement negotiations, or by third-party litigation financers to assess the risk of providing funding. More broadly, outcome prediction may be used by the likes of insurance companies to help calculate claim payouts. However, those using such tools must take care to ensure that they do not breach any professional or legal obligations.
Read More
July 10, 2023
One of the more positive outcomes of the COVID-19 pandemic is that telemedicine has become remarkably important as an interactive system between patients and healthcare professionals. Thailand, which ranks near the top as a world medical hub, is a highly favored destination in Asia for expat workers. Currently, the Thai market has both Thai-based and foreign-based platforms with information about healthcare providers and telemedicine readily available. “Doctor Locator,” “Weed Map,” and “Find a Teeth Aligner Dentist” are examples of online platforms connecting patients with medical and telemedicine services. These digital platforms provide information about the location of specialized clinics, cannabis dispensaries, pharmacy stores, and orthodontic practitioners in Thailand. These platforms act as intermediaries between medical care businesses and consumers. As actual medical services are not offered or provided, these digital platforms do not have to be regulated under the Medical Facility Act of Thailand. However, healthcare digital platform services that act as an intermediary or conduit managing information used to connect medical clinics or cannabis dispensaries with patients or customers via a computer network are now regulated under the soon-to-be-implemented Royal Decree on Digital Platforms, regardless of whether payment is actually made via the platform. The regulatory authority for this is the Electronic Transactions Development Agency (ETDA). Under this royal decree, digital platform providers that intend to operate a digital platform service must notify the ETDA prior to initiating operations. The extent of the details to be included in the notification to the ETDA will be more comprehensive if the digital platform: has annual revenue (before expenses) for digital platform services within Thailand exceeding THB 1.8 million (approx. USD 51,200) for an individual operator or THB 50 million (approx. USD 1.42 million) for a corporate or entity operator; or has more than 5,000 users (on average) per month. Apart
Read More
June 26, 2023
Vietnam’s Ministry of Information and Communications (MIC) organized a workshop with industry representatives on June 19, 2023, to discuss its future policy direction for over-the-top (OTT) telecom services and internet data center (IDC) and cloud computing services. OTT telecom services, in the MIC’s interpretation, are communication services such as text messages or voice calls provided over the internet—for example, the services of Zalo, WhatsApp, WeChat, etc. The workshop, the first in an expected series, focused only on the discussion of policy on how to regulate these services. Light-Touch Management Approach A very positive signal of the MIC in the workshop was its clear intention to apply a “light-touch” approach to management. For cross-border provision of OTT telecom services and IDC/cloud computing services, the MIC intends to require notification and a post-check mechanism, instead of a heavy licensing or commercial arrangement regime like the one applicable to traditional telecom services. In addition, there is no limitation on foreign investment if foreigners would like to provide these services in Vietnam. With regard to domestic service providers, the MIC proposes a registration regime with a similar post-check mechanism. The MIC’s reason for registration instead of notification is because the provision of these services by domestic companies may involve setting up data center/cloud systems which require consideration of various issues including location, electricity sources, and connection with telecom infrastructure such as marine cable. However, the MIC is also hoping to make the registration process as light as possible for enterprises (for example, using online registration) to provide a favorable environment and conditions to facilitate development of the industry without obstacles or cumbersome administrative procedures for companies’ operations. For providers of these services, the MIC is also considering an exemption from the responsibility to pay fees for telecommunications activities rights, and from payment to
Read More