On October 1, 2022, the Vietnamese government promulgated Decree No. 71/2022/ND-CP (“Decree 71”) amending and supplementing Decree No. 06/2016/ND-CP (“Decree 06”) on the Management, Provision, and Use of Radio and Television Services. Decree 71 will take effect on January 1, 2023, at the same time as the new Cinema Law.
Decree 71 is the result of the government’s long-time attempt to regulate the cross-border provision of “over-the-top” (OTT) television services, which deliver TV content to viewers over the internet, bypassing the traditional broadcast, cable, and satellite platforms, as well as to reinforce the requirements for content on demand. The key issues of Decree 71 are set out below.
1. Expanded Scope of Application
Decree 71 expands the scope of Decree 06 to clearly cover OTT video-on-demand (VOD) services by amending some definitions:
“Radio and TV services” is redefined to mean “services which provide intact domestic program channels and foreign program channels, on-demand radio and TV content [newly added], and value-added service content to users over radio and TV transmission and broadcasting infrastructure. Radio and TV services can be provided directly to service users without the use of storage or delay devices (online radio and TV services), or upon the specific request of subscribers (on-demand radio and TV services).”
“On-demand radio and TV content” is newly defined to include “films, domestic programs, and foreign programs.” Films (phim in Vietnamese) follow the definition under the Cinema Law, and in this context include movies/feature films as well as what would be considered “TV shows” or “TV series” (e.g., scripted comedies and dramas) in other countries. Domestic and foreign “programs,” on the other hand, follow the definition of radio and TV programs under Article 3.10 of the Press Law: “a collection of news and articles in spoken or visual press about a topic for a fixed amount of time with recognizable signs of opening and ending.” Thus, sporting events, reality shows, talk shows, and game shows, including live broadcasts at the time of the event, could be considered radio/TV programs.
“Radio and TV services on the internet” is redefined to mean “a type of radio or TV service using an internet connection through domain names of websites or IP addresses managed by Vietnam, including internet applications.” Under Decree 06, this definition had only included program channels.
Decree 71 also clearly expresses the government’s intention to regulate cross-border provision of foreign OTT TV services. In particular, Article 1.3(b) adds a new policy for the management of radio and TV services to include the management of radio and TV services on the internet provided cross-border to users in Vietnam. This clear intention was re-emphasized in a press release on Decree 71 by the Authority of Broadcasting and Electronic Information (ABEI) which confirmed that “all foreign enterprises must be licensed to provide cross-border OTT TV services in Vietnam.“
It is worth noting that the wording “through domain names of websites or IP addresses managed by Vietnam, including internet applications” in the definition of “radio and TV services on the internet” remains ambiguous. The most likely interpretation, given the government’s clear intention to manage cross-border OTT services, is that OTT TV services broadcast to customers in Vietnam must only be made through websites/applications having domain names/IP addresses managed by Vietnam. This would mean that OTT TV services broadcast through foreign websites/applications to customers in Vietnam would no longer be permissible, and foreign OTT TV service providers must manage to broadcast their content through websites/applications having domain names/IP addresses managed by Vietnam.
As this scope of application is critical to the operation of foreign OTT service providers offering their services to users in Vietnam, it remains to be seen how the ABEI will clarify this ambiguity.
2. Licensing for Provision of Pay TV Services
The licensing conditions in Decree 06 have not been changed by Decree 71, which means that enterprises wishing to provide OTT pay TV services, which are now explicitly under the scope of Decree 06, must be Vietnamese enterprises. Therefore, foreign companies might no longer be eligible to provide OTT pay TV services to users in Vietnam on a cross-border basis as they are currently doing with regard to OTT VOD, but may have to establish a company in Vietnam or cooperate with a licensed Vietnamese pay TV service provider to provide such services (include OTT VOD services) after Decree 71 comes into force.
Decree 71 differentiates between the application for a license to provide pay TV services with only VOD content vs. services with program channels. For the former, the license application form removes the requirement of having a plan for provision of pay TV services. Instead, providers only need to make a declaration according to a new form prescribed by the Ministry of Information and Communications (MIC), including the scope and technical conditions of service provision; means of payment; complaint handling process; tentative terms on the rights and responsibilities of the parties; intended content group provided on the service; “.vn” domain name or IP address; and internet application providing the service. The requirement of a “.vn” domain name or an IP address to provide services is a condition applicable to licensing of radio/TV services on the internet (Article 12.1(c) of Decree 06 as amended by Decree 71).
3. Editing, Classification, and Translation Requirements for VOD Content
Under Article 21.3 of Decree 06, TV service providers must ensure that all on-demand content provided to customers in Vietnam is edited by a licensed Vietnamese press agency. Decree 71 has significantly eased this requirement by providing a new Article 20a on editing, classifying, and translating on-demand content, and amending Article 21.3. In particular, under Decree 71:
Decree 71 is silent as to whether translations of foreign VOD films and other VOD programs/content are mandatory. However, given the clarification of the ABEI in the press release mentioned above, it appears that such translation is not mandatory. If VOD content is translated, however, the translation must ensure respect for and preservation of the purity of the Vietnamese language, and must not violate Vietnamese law.
In addition, Decree 71 sets out the following supplemental requirements:
4. Editing and Translation Requirements for Content of Foreign Program Channels
Under Article 17.5 and Article 19 of Decree 06, all content available on foreign TV channels provided via pay TV services, with the exception of live broadcasts of sporting events, must be edited by a licensed local press agency, while most content is required to be translated into Vietnamese. Decree 71 seems to have relaxed these requirements. In particular, Decree 71 amends Article 19 to remove the provisions on which types of programming must be translated, and merely provides that the editing of foreign program channels by a licensed press agency must ensure that:
Additionally, translation of foreign program channels must ensure respect for and preservation of the purity of the Vietnamese language.
Interestingly, although Article 19 of Decree 06 has been substantially amended, Article 17.5 remains unchanged, and provides that foreign program channels “must be edited and translated by a licensed press agency, who will take responsibility for the edited and translated content.” In the context of Decree 71, this provision could be understood not to mandate translation, but to mean that if a program channel’s content is translated, it must be done by a licensed press agency and meet the other requirements of the decree.
This interpretation of non-mandatory translation is confirmed by the ABEI press release mentioned above, which states: “Translation of foreign films and programs: Not mandatory; if translation is carried out, it must ensure respect and preservation of the purity of the Vietnamese language, and ensure that it does not violate prohibitions under Vietnamese law. This regulation also applies to the translation of foreign program channels.”
Thus, it is up to service providers to decide whether it is necessary to translate foreign content based on market demand. However, to avoid any confusion, especially as to whether it is the intention of the ABEI to still require that the translation of program channel content be done by a licensed press agency, and help stakeholders correctly comply with Decree 06 as amended by Decree 71, the ABEI should amend Article 17.5 or should provide clear official guidance for the implementation of these provisions.
While Decree 71 provides clarification on certain problematic issues of Decree 06, a number of ambiguities remain, such as whether non-mandatory translation of content still needs to be conducted by a licensed press agency or could be done by anyone, as long as the translation meets requirements of the decree.
In addition, if a foreign broadcaster decides to establish a company in Vietnam to provide foreign program channels in Vietnam, it is unclear whether the landing license stipulated in Decree 06, which was unchanged by Decree 71. is still necessary when the broadcaster has a commercial presence in Vietnam. The purpose of this landing license, which is granted to an authorized agent of the foreign broadcaster, is for the agent to register program channels with the MIC and fulfill the foreign broadcaster’s financial obligations. Once a foreign broadcaster has a commercial presence in Vietnam, however, these obligations arguably could be handled by its local subsidiary, raising the question of whether there is any need for an authorized agent holding a landing license anymore. Further clarification from the ABEI would be helpful in resolving these issues.