On July 20th, 2021, the Vietnam Government has issued Decree No. 70/2021/ND-CP amending and supplementing several articles of Decree No. 181/2013/ND-CP implementing the Law on Advertising (“Decree 70/2021/ND-CP”).
This article is to highlight some of the major contents of the new Decree regulated on cross-border advertising services in Vietnam.
1. Definition of cross-border advertising services in Vietnam
The Decree 70/2021/ND-CP provides definition of cross-border advertising services in Vietnam, which has not been clearly defined by Decree 181/2013/ND-CP yet. According to Decree 70/2021/ND-CP, the provision of cross-border advertising services in Vietnam is defined as the use of electronic information sites by foreign organizations and individuals to provide advertising services from systems located outside of Vietnam, for users in Vietnam, having revenue generated in Vietnam.
The new Decree also further clarifies that electronic information sites providing cross-border advertising services herein is defined that information systems utilizing one or more electronic information sites in the form of symbols, numbers, letters, images, sounds, and other forms of information which aims to provide users services of storing, providing, using, searching, exchanging information, sharing audio and images, creating forums, online chatting in the purposes of providing advertising services.
2. Responsibilities and obligations of cross-border advertising service providers in Vietnam
Decree 70/2021/ND-CP supplements provisions on responsibilities and obligations of subject participating in cross-border advertising service activities in Vietnam.
Accordingly, the new Decree has imposed legal compliance obligations on advertising service providers, advertising publisher, and advertiser located both inside and outside of Vietnam (“Providers”). Under Clause 3, Article 13 of Decree 70/2021/ND-CP, it is stipulated that Providers shall comply with Vietnamese laws on advertising, cybersecurity, and management, provision, and use of Internet services as well as online information; must pay tax as provided under Vietnamese tax laws when they participate in providing cross-border advertising services in Vietnam.
Additionally, the new Decree has also provided regulations on responsibilities and obligations of foreign organizations and individuals engaging in providing cross-border advertising services in Vietnam (“Foreign Providers”). Pursuant to clause 4, Article 13 of Decree 70/2021/ND-CP, Foreign Providers are responsible for:
(i) Complying with rights and obligations as provided under Article 13 of the Law on Advertising;
(ii) Notifying the Ministry of Information and Communication (“the MIC”) their contact information 15 days before providing cross-border services in Vietnam;
(iii) Not attaching advertisements to content infringing Vietnamese laws as provided under clause 1, Article 8 of the Law on Cybersecurity and Article 28 of the Law on Intellectual Property;
(iv) Preventing and taking down infringing content upon a request of the MIC and competent authorities; providing information about organizations and individuals involved in cross-border advertising activities that appear illegal to competent authorities upon request.
3. Responsibilities of competent authorities
Historically, under Decree No. 81/2013/ND-CP, the Ministry of Culture, Sport and Tourism was responsible for managing cross-border advertising services in Vietnam. Pursuant to Decree 70/2021/NP-CP, the management shall be required by the MIC.
Accordingly, the MIC shall receive reports on violations of laws on cross-border advertising activities from other ministries, sectors, and localities. It will then send requests on violation settlement to foreign organizations and individuals providing cross-border advertising services.
The new Decree, Decree 70/2021/ND-CP, will take effect on September 15th, 2021.
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