The pervasive global issue of illicit personal data trading has extended its reach into Vietnam, where such sensitive information is being sold at minimal costs. A 2023 report from the Ministry of Public Security revealed that over two-thirds of the Vietnamese population has fallen victim to unlawful data collection and distribution. In the past two years, authorities have pressed charges on five criminal cases involving the buying and selling of billions of items of personal data, encompassing a wide range of sensitive information such as names, phone numbers, email addresses, and more. Notably, a person’s profile can be acquired for just USD 1, while profiles of millions of business customers can be obtained for a mere USD 100.
Recognizing the severity of the problem, Vietnam has made serious efforts to combat illicit personal data trading by criminal means, encompassing both the legal framework and practical implementation.
Understanding the Criminal Legal Framework
Vietnam’s 2015 Criminal Code, as amended in 2017, functions as a pivotal legal instrument delineating offenses and their corresponding punishments. Under Section 2 of Chapter XXI of the Criminal Code (“Offenses Against Regulations on Information Technology and Telecommunications Networks”), individuals engaging in the illicit trading of personal data, depending on the nature of the data (e.g., information about phone number, address, or—more dangerously—bank account) and the nature of the infringing acts, may be charged under different crimes. The sanctions can include monetary fines; non-custodial reform; imprisonment; and/or prohibition from holding certain positions, practicing certain professions, or doing certain jobs.
For example, for the illicit trade of private information of an individual on a computer or telecommunications network, Article 288 of the Criminal Code specifies penalties including a monetary fine of up to VND 1 billion (equivalent to around USD 41,000); non-custodial reform of up to three years; imprisonment of up to seven years; and/or prohibition from holding certain positions, practicing certain professions, or doing certain jobs for up to five years.
In the eyes of some scholars and practitioners, these sanctions are an insufficient deterrent, as personal data is deemed highly sensitive and has the potential to substantially affect the individuals involved, as well as pose broader risks to security and public order. However, others would argue that these penalties are relatively harsh in Vietnam, where the average worker makes less than USD 4,000 per year, and could prove to be effective if they are widely and consistently applied in practice.,
Handling of Criminal Cases in Practice
In a recent case settled by the People’s Court of Hai Duong Province in December 2022, Mr. K (the offender) collected and distributed 3,848 files containing customers’ data from two financial companies in Vietnam. The total amount Mr. K gained from selling personal information was VND 458,952,000 (approx. USD 18,825).
Considering that Mr. K had full legal capacity for criminal liability and was clearly aware that his act was a violation of criminal law, but still intentionally committed it for personal gain, the People’s Court of Hai Duong Province applied Article 288 of the Criminal Code and ruled that Mr. K was subject to:
- A suspended sentence of 24 months, with a probation period of 48 months from the date of first-instance decision;
- A fine of VND 100 million (USD 4,100) to be paid to the state budget;
- Confiscation of the illicit profits of VND 458,952,000 (USD 18,825) he obtained to be remitted to the state budget; and
- Confiscation and sale of the exhibits used to commit a crime, comprising one computer desk, one computer hard drive, one USB drive, and one mobile phone, to be remitted to the state budget.
In another case settled by the People’s Court of Hanoi in March 2023, multiple offenders were involved, including, among others, a former police officer, the deputy head of the security department of a network infrastructure company, and an officer of the social insurance authority. The proceeds obtained by each offender from illicit trading of personal data ranged from VND 140 million (USD 5,750) to about VND 500 million (USD 20,550).
After examining all the case facts, the People’s Court of Hanoi imposed penalties ranging from a 20-month suspended sentence to six years of imprisonment, depending on the severity of the crime committed by each offender.
Outlook
The buying and selling of personal data in Vietnam remains a significant and growing concern, though the authorities have handled such violations quite severely, as reflected in the case examples above.
In November 2023, the Minister of Public Security, when questioned about the alarming situation of illicit trade of personal data, expressed his deep concern over the prevailing issues of exposure, leakage, and trading of personal information in Vietnam. The minister even proposed amendments to the Criminal Code to incorporate offenses related to disclosing, leaking, buying, and selling personal data, with the aim of enforcing strict penalties for these actions.
It is anticipated that with more stringent regulations and thorough measures in place to be enacted, unauthorized data trading will be effectively curtailed.
For further information, please contact:
Duc Anh Tran, Tilleke & Gibbins
duc.t@tgvn.vn
