28 September 2020
On August 14, 2020, the government of Vietnam issued Decree 91/2020/ND-CP on fighting against spam text messages, spam email, and spam calls. The new decree will take effect on October 1, 2020, replacing Decree 90/2008 on anti-spam and all of its amendments. In general, Decree 91 retains the essential rules on anti-spam regulated in Decree 90, but expands the scope of application and provides stricter measures in controlling spam.
Some essential rules from Decree 90 that are retained in Decree 91 include the consent rule (advertisers can only send advertising text messages or advertising email, or make advertising calls, after obtaining express consent from recipients); the opt-out mechanism (recipients can refuse receiving advertising text messages, emails, and calls); a limit on the number of advertising text messages, emails, or calls an advertiser can send/make per day to a recipient and a specified time during the day for them to be sent/made; and rules for labeling advertising text messages and emails, and identifying advertisers or advertisement service providers.
Decree 91 additionally provides the following new and improved contents:
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The scope of application is expanded to include spam calls, in addition to the spam text messages and spam emails covered under Decree 90.
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A new, clearer definition of what could be considered spam is provided. Spam includes advertising messages, advertising emails, and advertising calls which are sent or made to users without their prior consent, or which violate regulations of Decree 91; and messages, emails, and calls containing prohibited content in violation of the specified provisions of relevant laws specified in the decree.
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Stricter anti-spam control measures are provided. For example, a system of reporting spam to the operating number of 5656 will be developed and operated by the Authority of Information Security (AIS) under the Ministry of Information and Communications for receiving feedback about spam messages and calls. Advertisers that send advertising messages must also send copies to this system. Users, when receiving spam, may send feedback and evidence to this system. In addition, the AIS must set up and operate a Do-Not-Call Register, which is a list of phone numbers that have been registered by subscribers who do not want to receive any opt-in messages, advertising messages, or advertising calls. Advertisers must not send opt-in messages or advertising messages or make advertising calls to people on this list. Telecom service users can register or withdraw their phone numbers from the Do-Not-Call Register. Also, a blacklist of IP addresses that spread spam email will be developed and updated by the AIS on its website.
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Relevant stakeholders will have increased responsibilities and obligations. For example, telecom and internet service providers will have to deploy and strictly implement new measures to prevent advertising messages and calls from being sent/made to the Do-Not-Call Register, and compile, update, and share blacklists of spam senders. They must also deploy artificial intelligence, big data, and other technological advances to establish and operate anti-spam systems. Email service providers will have to provide users with instructions, tools, and applications for reporting and blocking spam email; implement measures to block, filter, and update sources of spam emails; have solutions to prevent loss and accidental blocking of users’ email addresses; and monitor, inspect, and scan their email servers to make sure they are not sources of spam email. Advertisers will be required to check the Do-Not-Call Register to avoid sending opt-in messages or advertising messages or making advertising calls to numbers on the list; have appropriate solutions and enable users to refuse advertising messages and email; and promptly stop calling users if the users refuse to receive advertising calls.
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New and stronger sanctions for administrative violations of anti-spam regulations are provided for deterrence and user protection. For example, if advertisers send any advertising messages or make any advertising calls to numbers on the Do-Not-Call Register, they will be subject to a fine ranging from VND 80,000,000 to VND 100,000,000 (around USD 3,400 to 4,300). A fine ranging from VND 140,000,000 to VND 170,000,000 (around USD 6,000 to 7,250) could be imposed for a failure to have measures to block advertising messages and advertising calls to the Do-Not-Call Register, or a failure to develop and operate anti-spam systems.
The administrative measures under Decree 91 are also improved compared to Decree 90. Decree 91 calls for the establishment of a national system for management and storage of identification names of advertisers/advertising service providers nationwide, allowing anyone to access the system to check names of advertising message senders or callers. The issuance of identification names for advertisers/advertising service providers can be done online with simple procedures via the website http://tendinhdanh.ais.gov.vn, which helps save resources, costs, and time.
For further information, please contact:
Thomas J. Treutler, Partner, Tilleke & Gibbins
thomas.t@tilleke.com
