Laws on online commercial advertising services on the internet in Vietnam nowadays

the issue of not specifically delineating authority and coordination mechanism among state agencies [61, pp.4-5]. Especially the article “Protection of personal information in e- commerce according to Vietnamese law”, author Dinh Thi Lan Anh has raised a number of theoretical issues for the protection of personal information of consumers such as deep consideration of concepts related to personal information, legal liability of the entities involved in acts of infringing upon the personal information of consumers [57, pp.29-33]. 1.1.2.2. Studies on law enforcement situation related to online commercial advertising services on internet Nguyen Thi Tam has shown profound research in the thesis “Completing the law on commercial advertising” (2016), fully synthesizing the provisions of the law on commercial advertising, making comments that although has adjusted to practical needs basically, but the current commercial advertising law still has some shortcomings [55, p.121]. Author Nguyen 7 Phan Anh in his master thesis “The law on sales and advertising on social networks in Vietnam”, has pointed out many shortcomings in the implementation of regulations on advertising on social networks [43]. Since the Internet has become ubiquitous, concerns have been raised about the best way to protect consumers from new forms of advertising, Martin, A.R. & Sarkar, R. raised this issue in the article “Developments in advertising and consumer protection in cyberspace” [110, p.295]. In the article “Inadequacies in commercial advertising on the Internet and recommendations for improvement”, Vo Thi Thanh Linh has summarized many shortcomings [80, pp.67-72]. Nguyen Nhu Chinh, in his article “Regulations on inspection, supervision and handling of violations in commercial advertising activities - Current situation and direction of improvement”, stated “The authority to manage, inspect, monitor and sanction violations in the current commercial advertising activities based on the division of management fields among ministries” [67, p.4]. In addition, regarding internet users, consumers in e-commerce, there are also a number of studies mentioned. “Law on consumer protection in e-commerce” by Le Van Thiep gives us a concept of consumers in e- commerce and clearly specifies the principles in protecting consumers in e- commerce [91, p.33]. This study only mentions the general situation of consumers in e-commerce. Meanwhile, Doan Quynh Thuong, while talking about the basic disputes in e-commerce in the article “About some disputes in e-commerce”, mentioned the situation of disputes related to the protection of consumers' personal data in e-commerce [93, pp.41-42]. Steven C. Bennett in the article “Regulating Online Behavioral Advertising” offers a number of perspectives on adjusting ads based on online behavior, possibly providing in-depth regulations with the primary goal of ensuring consumer privacy is protected, preventing misuse of consumer information, or a system of public and private litigation aimed at addressing redundancies in online behavioral advertising practices, which may better address these central concerns while maintaining the economic viability of advertising based on online behavior [115, p.943]. 1.1.3. Proposals and recommendations in the research works related to the law on online commercial advertising services on the internet Nguyen Thi Tam in the thesis “Completing the law on commercial advertising” has given a number of solutions such as: Rebuilding the concept 8 of commercial advertising and solving legal conflicts in the field of commercial advertising; Solutions to perfect the law on subjects participating in commercial advertising legal relations [55] In his master thesis “Laws on sales and advertising on social networks in Vietnam”, author Nguyen Phan Anh has determined that the completion of laws governing social media advertising is necessary to promote Vietnam's international integration [43, pp.76-82]. Luận văn thạc sĩ “Pháp luật về hoạt động bán hàng và quảng cáo trên mạng xã hội tại Việt Nam”, tác giả Nguyễn Phan Anh xác định được việc hoàn thiện pháp luật điều chỉnh hoạt động quảng cáo trên mạng xã hội cần thiết để đẩy mạnh hội nhập quốc tế của Việt Nam [43, tr.76-82]. Nguyen Thi Thu Huong, in her thesis “State management of online advertising services in Vietnam”, Vu Thi Hoa Nhu in the article “Competence to manage commercial advertising activities according to the law of China and some Southeast Asian countries - Lessons for Vietnam”, Vo Thi Khanh Linh in the article “Competence to manage online commercial advertising activities in the UK, Singapore and proposing to improve the law on online commerce in Vietnam”, Le Ngoc Anh in the article “Competence to manage commercial advertising activities according to the UK and the US laws and experiences for Vietnam” studied the experiences of some countries around the world to draw lessons for state management in Vietnam. In the article “To Track or Do Not Track: Advancing Transparency and Individual Control in Online Behavioral Advertising”, Omer Tene & Jules Polonetsky stated that the legal framework for both online and offline privacy is changing but nowhere is this more obvious than in the online environment [111, pp.307-308]. Alexander Nill & Robert J. Aalberts in “Legal and Ethical Challenges of Online Behavioral Targeting in Advertising” argues that online behavioral targeting, despite its many benefits for both shoppers and advertisers, but in reality, there are possibilities of technology that would violate consumer privacy at a dangerous and unprecedented level [99]. 1.1.4. Overall assessment of research situation In general, there are not many scientific research works on online commercial advertising services. 1.1.4.1. Issues that the thesis will inherit First, in terms of theoretical 9 - The studies have synthesized general commercial advertising theory, giving some suggestions for researching the concept of online commercial advertising services. - The studies have compiled the source of the law applicable to commercial advertising in general and the content of the law. Second, in terms of practical - The research works approaching under the perspective of statutory law, this approach helps to provide a foundation and solid basis for building the proposed directions and solutions to improve the efficiency of law application. - In addition to the jurisprudence studies, there are some studies approaching from a state management perspective or a marketing perspective. - In terms of the direction to improve the legal system, studies have focused on a number of orientations. 1.1.4.2. Issues that have not been mentioned - The concept and characteristics of online commercial advertising services have not been emphasized, clarified, and separated from other traditional commercial advertising services. - There have been no studies to clarify the concept and characteristics of the law on online commercial advertising services on the internet. - The reality of legal regulations and law enforcement practices governing online commercial advertising services on the internet has not yet been synthesized, reviewed, and assessed on the advantages and disadvantages. 1.1.5. The issues will continue to be researched in the content of the thesis Firstly, theoretically, on the basis of the multi-disciplinary and interdisciplinary approach, the thesis will continue to inherit and analyze more deeply. Secondly, the thesis continues to evaluate the current state of law provisions on online commercial advertising services. Thirdly, from the above theoretical and practical research, some orientations and requirements for the completion of legal regulations are proposed; propose some more solutions to improve law enforcement efficiency for online commercial advertising activities. 10 1.2. Theoretical basis and research method 1.2.1. Theoretical basis To do research, the thesis is expected to use the following research theories: Theory of service trade; Theory of business freedom; Theory of consumer protection; Theory of internet user's privacy, right to personal privacy, confidentiality of information. 1.2.2. Research question To achieve the research goals, the author poses the following research questions: First, in terms of theoretical (i) What kind of service is the online advertising service on the internet, what are the differences compared to the traditional advertising service? What risks can arise in online advertising services on the internet? (ii) How is the law on online advertising services on the internet understood and what basic content does it include? Secondly, on the current situation of the law on online advertising services on the internet (i) What is the current situation of legal regulations and practice of implementing the law on online commercial advertising services on the Internet in Vietnam nowadays, what are the advantages and disadvantages? (ii) When applying current laws, is there any risk in online commercial advertising services on the Internet in Vietnam nowadays? Thirdly, on orientations and solutions to complete the law on online commercial advertising services on the Internet (i) What are the requirements for completing the law on online commercial advertising services on the Internet in Vietnam nowadays? (ii) What are specific solutions to improve the enforcement of the law on online commercial advertising services on the Internet in Vietnam nowadays? 1.2.3. Research hypothesis To answer the research questions, the thesis offers the following research hypotheses: - Theoretical basis of law on online commercial advertising services on the Internet have not been fully and comprehensively studied. - The current legal provisions on online commercial advertising services on the Internet in Vietnam still have shortcomings that create 11 restrictions affecting the entities participating in commercial advertising activities as well as related entities in society. - The implementation of the law on online commercial advertising services on the Internet still faces many problems and limitations. - In order to create conditions for entities to develop online commercial advertising services on the Internet, it is necessary to renew and improve strongly the legal system as well as the organization and implementation of the law. CONCLUSION OF CHAPTER 1 After doing an overview of the research situation and identifying the research theoretical basis for the thesis topic, it is possible to draw the following conclusions: 1. The research works also give some orientations for the thesis research. 2. The research works have not yet gone into the type of online commercial advertising service on the internet, so the concept and characteristics of this service have not been clarified; the practice of legal regulations and the enforcement of the law on online commercial advertising services on the internet also have not been considered and evaluated. These are the basic issues that the thesis will continue to deploy. 3. To do research on the topic, the thesis uses a number of research theories such as: The theory of service trade, the theory of advertising communication Chapter 2 THEORETICAL ISSUES ABOUT THE LAW OF ONLINE COMMERCIAL ADVERTISING SERVICES ON THE INTERNET 2.1. Theoretical overview of online commercial advertising services on the internet 2.1.1. Concept of online commercial advertising service on the internet 2.1.1.1. Commercial advertising services Advertising was formed very early with the development of commercial activities, it acted as an intermediary activity connecting sellers and buyers. 12 a) Understanding of advertising According to the Vietnamese Dictionary, “Advertising is a presentation to widely introduce to many people in order to gain more customers”. From a legal perspective, advertising is also mentioned in legal dictionaries and legal documents. In Vietnam, the advertising concept is also mentioned in a number of different legal documents. b) Commercial advertising services Commercial advertising activities may be carried out by traders - manufacturers of goods and services themselves; however, in an increasingly professionalized business environment, to achieve high efficiency, these traders have used commercial advertising services provided by professional advertising traders through commercial advertising service contracts. 2.1.1.2. Online commercial advertising services on the internet Although there is no official definition of an online commercial advertising service, whether in the world or in Vietnam, with the above analysis of commercial advertising services and online activities, the author gives a definition: “Online commercial advertising service on the internet means a service which uses information technology and electronic devices connected in the internet environment to introduce products, goods and services with profit-making purposes or information on traders trading in products, goods or services to public to promote commercial activities for such traders”. 2.1.1.3. Classification of online commercial advertising services on the internet a) Based on methods of charging for advertisers b) Based on the ways of conducting commercial advertising online 2.1.2. Characteristics of online commercial advertising services on the internet * Firstly, online commercial advertising services on the internet carry out information dissemination and promotion for products, goods, and services to be introduced to the public through information technology and electronic devices which is connected to the internet. * Secondly, the online commercial advertising services involves many individuals and organizations involved in commercial activities. * Thirdly, the purpose of the entities when participating in online commercial advertising services. 13 2.1.3. The benefits and risks of online commercial advertising services on the internet 2.1.3.1. Benefits of online commercial advertising on the internet - Low implementation costs. - Better access to targeted customers. - Interaction with customers. - Highly efficient and easy to manage. 2.1.3.2. Risks of online commercial advertising services on the internet - For advertisers. - For consumers, internet users. 2.2. Legal theory of online commercial advertising services on the internet 2.2.1. Legal concept of online commercial advertising service on internet The author temporarily introduces the concept: The law on online commercial advertising services on the internet is a synthesis of the laws of the State governing social relations between entities arising in the process of online commercial advertising services for profit purposes. In the process of implementing “online commercial advertising services on the internet” (clarified above), many social relations arise between many different types of entities. These are the three basic types of subjects: advertiser, advertising network and publisher; with the participation of internet users acting as receiver of advertisements as well as consumers if they make purchases based on these advertisements. 2.2.2. Characteristics of the law on online commercial advertising services on the internet Firstly, the law on online commercial advertising services on the internet has an interference between many legal fields, with the participation and management of many state agencies. Second, the law on online commercial advertising services on the internet harmonizes the freedom of business of traders and the protection of consumers and internet users. Thirdly, because online commercial advertising on the internet is associated with the digital environment, the law on online commercial advertising services on the internet also faces many difficulties in identifying violations and identify the participant or the actor involved in that act. 14 Fourthly, the law on online commercial advertising services on the internet governs entities with different levels of awareness towards electronic media and the internet. 2.2.3. Legal documents system governing online commercial advertising services on the internet 2.2.4. Basic principles of the law on online commercial advertising services on the internet First: National security protection, social order, and social safety Second: Respect and protect the interests of internet users and consumers when participating in the purchase of goods and services through the Internet. Third: Respect traders' right to freely advertise on the Internet. Fourth: Protect life, health, honor and dignity of individuals and organizations 2.2.5. The basic contents of the law on online commercial advertising services on the internet 2.2.5.1. Conditions for providing online commercial advertising services on the internet Conditions for providing online commercial advertising services on the internet are prescribed by legislators in two directions: the conditions on the content of the advertisement or the advertising message for products, goods, and services; and conditions for conducting online advertising business on the internet. 2.2.5.2. Legal entities in online commercial advertising services on the internet In the current online commercial advertising business model, there are 3 basic types of entities participating in the model, including: advertiser, advertising network and publisher. 2.2.5.3. Contracts for online commercial advertising services on the internet In this thesis, the author does not mention contracts on advertising product design that design companies are hired to deploy at the request of advertisers, because this type of contract within the scope of online commerce advertising activities is not different from traditional advertising and has almost no effect on the implementation of online commercial advertising services. 15 Firstly, the contract to provide online commercial advertising services. Secondly, the advertising publishing contract (advertising cooperation contract). Thirdly, the advertising agency contracts. 2.2.5.4. State management in online commercial advertising services on the internet The potential risks described above for entities participating in online commercial advertising is a big issue to pay attention to and also requires impact from the government. In other words, it is necessary to have a state management mechanism for online commercial advertising services on the internet to both promote the benefits of online commercial advertising as well as control uncertainties that this type of service brings to the society. In the following, we look at the advertising management mechanism in several countries around the world: * Singapore Singapore is one of the few countries in the world to develop an advertising Code with a series of appendices to specify the adjustment of advertising activities in various forms. The Advertising Standards Authority of Singapore (ASAS) was established in 1976 with the main purpose of promoting ethical advertising in Singapore, is a self-regulatory mechanism in the advertising industry, and also an advisory board for the Consumers Association of Singapore (CASE). * The United Kingdom Advertising regulations in the UK take many different forms, including an established and respected standard self-regulatory system, which exists alongside laws including the Consumer Protection from Unfair Trading Regulations and the Business Protection from Misleading Marketing Regulations. Different regulators play a different role including the Advertising Standards Authority (ASA) - managing the self-regulatory system, the local government transaction standards office and the Competition and Markets Authority (CMA). * The United States Marketing and advertising on the Internet are subject to the law, as well as any other media. The basic rules are enforced by the Federal Trade Commission (FTC) under the Federal Trade Commission Act. FTC is 16 responsible for making policy statements, detailed guidelines, seminars, and current announcements for advertising regulations. * China Over the years, the Chinese government has shifted its focus to tighter advertising and, more recently, online advertising. Following the amendment of the Advertising Law made in 2015, the State Administration for Industry and Commerce (SAIC) has just issued the Interim Measures for the Administration of Internet Advertising (Appendix), which came into effect on September 1, 2016; In particular, China implies tighter control over advertisers who want to promote their goods and services in the country. 2.2.5.5. Protection of internet users' interests in online commercial advertisement activities on the internet The first problem is that the provision of information about products, goods and services is inaccurate or confusing, leading to the infringement of direct interests. The second problem can be encountered by all internet users receiving ads whether they are consumers or not: to place automated ads in the most effective way (i.e., reaching the right target customers), ads distributors or publishers have used certain ways to collect information about users' interests and activities through what they do on the internet. CONCLUSION OF CHAPTER 2 After studying legal theoretical issues about online commercial advertising services on the internet, it is possible to draw the following conclusions: 1. Online commercial advertising service on the internet using computer network technologies and electronic means for the purpose of promoting the commercial activities of traders. 2. Laws on online commercial advertising services on the internet regulate social relationships arising between entities in the process of implementing online commercial advertising services on the internet for profit purposes. Chapter 3 CURRENT SITUATION OF LEGAL REGULATIONS AND LAW ENFORCEMENT ON ONLINE COMMERCIAL ADVERTISING SERVICES ON THE INTERNET IN VIETNAM NOWADAYS 3.1. Situation of legal regulations on online commercial advertising services on the internet in Vietnam nowadays 17 3.1.1. Regulations on conditions for conducting online commercial advertisement service business on the internet 3.1.1.1. Conditions for the object of online commercial advertising on the internet The laws of Vietnam as well as the laws of other countries in the world, when talking about advertising content often give certain criteria for special products, goods and services such as medicines, alcohol, tobacco, or products, goods or services related to children. The Decree 181/2013/NĐ-CP on elaboration of some articles of the Law on Advertising 2012 provides specific conditions for special products, goods and services such as drugs, cosmetics, food, food additives, milk and nutritional supplements, plant protection drugs, fertilizers, bio-products from Article 3 to Article 11. 3.1.1.2. Conditions for conducting online commercial advertising services on the internet Through the internet, online commercial advertising service providers can use multiple channels/media to transmit advertising messages, including some that require the owner to have the license from the competent state agencies to conduct commercial advertising service business. 3.1.2. Regulations on legal entities in online commercial advertising services on the internet Firstly, advertisers The regulations stipulate two types of advertisers participating in online commercial advertising services are economic organizations and individuals. Secondly, advertising service providers According to Clause 6, Article 2 of the Law on Advertising 2012, “Advertising service providers are organizations and individuals that perform one, a number of, or all the phases of an advertising process under the advertising contract with the advertiser”. Thirdly, advertisement publishers According to Clause 7, Article 2 of the Law on Advertising 2012, advertisement publishers are “organizations and individuals using means of advertising under their management to present the advertisements to the public, including the press, publishers, website owners, organizers of sports events and cultural progr