http://www.elibrary.vn/2023/03/some-suggestions-for-protecting-right.html
Dinh Van Liem (2023), Some suggestions for protecting the right to privacy in Vietnam, in JURISPRUDENCE, STATE AND LAW: TOPICAL ISSUES AND MODERN ASPECTS: Proceedings of the XII International Scientific and Practical Conference. – Penza, Russia: ICNS "Science and Education", pp. 20-23. ISBN 978-5-00173-727-8
SOME SUGGESTIONS FOR PROTECTING THE RIGHT TO PRIVACY IN VIETNAM
Dinh Van Liem
Candidate of legal sciences, lecturer
Faculty of Law,
College of Social Sciences and Humanities, Vinh university,
Nghe An province, Vietnam
Abstract: Privacy is a fundamental human right attached to each individual, clearly defined by international and Vietnamese law. Even privacy is considered “inviolable.” In this research, the author analyzes the current legal provisions on privacy protection and proposes solutions to ensure the effectiveness of privacy protection activities in practice.
Keywords: Human rights, privacy, children's privacy, protection of privacy.
НЕКОТОРЫЕ ПРЕДЛОЖЕНИЯ ПО ЗАЩИТЕ ПРАВА НА КОНФИДЕНЦИАЛЬНОСТЬ ВО ВЬЕТНАМЕ
Динь Ван Льем
Аннотация: Неприкосновенность частной жизни является основным правом человека, закрепленным за каждым человеком, четко определенным международным и вьетнамским законодательством. Даже конфиденциальность считается «неприкосновенной». В данном исследовании автор анализирует действующие правовые положения о защите неприкосновенности частной жизни и предлагает решения, обеспечивающие эффективность деятельности по защите неприкосновенности частной жизни на практике.
Ключевые слова: права человека, неприкосновенность частной жизни, неприкосновенность частной жизни детей, защита частной жизни.
Introduction
The privacy or right to privacy is mentioned in Article 12 of the Universal Declaration of Human Rights as follows: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Although the term “right to privacy” has not been defined explicitly in legal documents in Vietnam, it has been stated in a few legal documents, such as Article 21 of the Constitution in 2013 and Article 38 of the Civil Code in 2015. Accordingly, everyone has the right to the inviolability of private life, personal privacy, and family privacy. Everyone has the right to privacy in correspondence, telephone conversations, telegrams, and other forms of private communication. No one is allowed to collect, store, use, or publicize information related to private life, personal privacy, or family privacy, arbitrarily open letters, or eavesdrop on other people's phones except in cases provided for by law. The article will analyze the factors affecting privacy as well as legal restrictions on privacy and make recommendations to protect privacy in Vietnam.
1. Some factors affecting the protection of privacy
Vietnam is in the process of building and completing the legal system, making the civil law after Doi Moi only engages in economic relations, much related to property rights, but not human rights, including the right to privacy. After the Constitution in 2013 was established, and the issue of human rights began to be focused on and made great progress, the right to privacy was included in Article 38 of the Civil Code in 2015 with the name “Right to private life.” The construction of a legal corridor on privacy in Vietnam needs to borrow foreign legal regulations and pay attention to the country’s situation. Especially regarding the right to privacy in the social environment, it's significant to assess some characteristics of Vietnamese society to form and ensure law enforcement.
Firstly, the Vietnamese cultural tradition bears features of Asian culture and is influenced by Confucianism. Vietnamese culture is village culture. On the one hand, people protect and love each other, but on the other hand, they monitor, peek at, and reveal each other’s private lives. The Vietnamese not only live as individuals but also as part of a family, a clan, and a village. Personal life is often not valued as much as public life. The long war for independence has caused many social relationships to become distorted in the direction of deeply encroaching on other people’s private lives.
Secondly, besides the law, public opinion is one of the crucial factors in effectively regulating social relations and the behavior of each individual with traditional ethical standards. Each person not only takes legal liability for their actions and deeds but also is judged in terms of morality. Vietnamese people are often curious about others’ lives and make comments based on behavioral expressions.
Thirdly, the invasion of privacy in Vietnam is incredibly serious in the context of the rapid development of digital technology (Details on ensuring privacy in the digital age). Since internet services appeared in Vietnam at the end of 1997, internet access costs have decreased, and the quality of service and bandwidth has risen. Internet users have increased rapidly, from over 800,000 in 2003 to 45 million in 2015. Statistics in 2015 showed that the number of Facebook accounts in Vietnam was up to 35 million [7]. It can be affirmed that the development speed of the internet and social networks in our country is faster than that of the region and the world.
2. Situation and some recommendations to protect privacy in Vietnam
Legal regulations on protecting privacy have developed a common legal framework to regulate large groups of relationships on privacy protection. However, privacy is still violated by the following common behavior.
- Private life is invaded. Personal and family privacy is disclosed and used illegally. Violations focus on relationships, marriage, sex life, and gender.
- Information is stolen, illegally disclosed, and widely traded, which leads to many potential risks for individuals. Letters, messages, and “junk” calls annoy users every day.
- Financial information is disclosed, causing damage to the people.
- Information about health and education and details of children are not properly controlled.
- The legal system has many limitations.
In terms of form, legal regulations are mentioned in many documents, making it difficult to access, comply with, and enforce.
In terms of content, it is still incomplete and comprehensive. For example, up to now, the concept of personal information has not been given in a general and scientific way and is not suitable for the general approach of the world. Therefore, it is challenging to determine what personal information is, how it is protected, to what extent, and by what methods. The current law does not have regulations on transferring personal information across borders. (ii) There are many general provisions, so applying isn’t easy.
Some recommendations and solutions to protect the right to privacy in Vietnam include:
Firstly, it is vital to complete the provisions of specialized laws on privacy protection. In particular, it is necessary to specify the scope of information considered to be related to private life as well as acts that infringe on privacy. Experience from the United States shows that building the concept of privacy is not as important as specifying privacy violations. American civil law recognizes acts of invasion of privacy as a basis for arising an obligation to compensate for non-contractual damages, including (i) intrusion upon seclusion, (ii) appropriation of name or likeness, (iii) publicity given to private life, and (iv) publicity that unreasonably places the other in a false light before the public. These are regulations that Vietnam can learn from.
Although Article 21 of the Constitution in 2013 is under the level of framework regulation, it creates a premise for the institutionalization of many provisions on privacy rights in other legal documents, such as the Civil Code, the Criminal Code, the Law on Children, the Law on E-Transactions, and the Law on Cyberinformation Security.
As the second most momentous law after the Constitution, the first law of the private law system, the Civil Code in 2015 gives Article 38 to specifically stipulate “the right to private life, personal privacy, and family privacy.”
“Article 38. Right to private life, personal privacy, and family privacy:
1. Private life, personal privacy, and family privacy are inviolable and protected by law.
2. The collection, storage, use, and publication of information related to an individual’s private life or personal privacy must have his/ her consent. The collection, storage, use, and publication of information related to family privacy must have the permission of the family members, except where otherwise prescribed by law.”
Compared with Article 38 of the Civil Code in 2005, which regulates the right to privacy, Article 38 of the Civil Code in 2015 changes both content and structure. In addition to expanding the scope of protection from “the Right to privacy” to “the Right to private life, personal privacy, and family privacy,” Article 38 of the Civil Code in 2015 also has structural changes. Specifically, Clause 1 recognizes the “inviolability” of the Right to private life, personal privacy, and family privacy. Clause 2 provides for cases in which information is kept, used, and disclosed, and consent is required. Clause 3 presents the protection of privacy, and confidentiality of correspondence, telephones, telegrams, and electronic databases to suit the context of the digital age. Clause 4 is about the protection of information in the process of contract establishment.
However, the provisions in Article 38 of the Civil Code in 2015 are only framework regulations and are principled. Clauses 2 and 3 of the law write: “unless otherwise provided for by law” and “in cases provided for by law.” As for the right to privacy, the law has certain exceptions. However, with a new right enshrined in the Constitution and the Civil Code, such as the right to private life, there is still a lack of detailed regulations, making it difficult for the law to be put into practice. Legislation providing exceptions to the use, storage, and disclosure of information relating to private life must be formed quickly. However, this process will take a long time because the exceptions must be recognized in the legal document, which has a strict and complicated process of development and amendment, and must be approved by the National Assembly, the highest organ of state power.
Currently, there are only provisions for protecting the right to private privacy in some laws, such as the Law on E-Transactions in 2005 [2], the Law on People’s Health Protection in 1989 [3], and the Law on Cyberinformation Security in 2015, and there are not many regulations for protecting the right to privacy. Meanwhile, the scope of protecting the right to privacy is much broader than protecting the right to private privacy.
Decree No. 56/2017/ND-CP guiding the Law on Children sets out regulations on protecting children’s privacy rights. Chapter IV, Responsibility to protect children in the internet environment, has defined confidential information of children’s private life and personal privacy.
“Article 33. Private information of children.
Private information of a child is information on name, age, and characteristics for personal identification, information on health status and privacy written in health records, personal images, information on family members and caregiver of the child, personal property, telephone number, mail address, information on residence place and a native place, information on the school, class, learning result, and friends of the child, and information on services provided for the child. (Excerpt from Decree No. 56/2017/ND-CP)”
Defining privacy is complicated, controversial, and not significant. However, it is urgent to introduce the concept of private information and clarify the privacy violations. Although these regulations are only for children and are limited to the online environment, they are remarkable strides.
Secondly, based on identifying acts of invasion of privacy, it is necessary to build a legal system on administrative-criminal sanctions and civil liability for actions that infringe on privacy. In particular, we shall reform the regulations on compensation for loss of honor, dignity, and reputation for people whose privacy rights have been violated.
Thirdly, raising people’s legal awareness plays a prominent part. It is vital to develop internal regulations and conventions for social organizations and residential areas, which is like an additional measure for privacy protection in the social environment.
Fourthly, it is indispensable to perform well the obligations to the international community and commitments to which Vietnam has joined, enlist the consensus and support of the international community, as well as protect the country’s interests in international organizations in the field of human rights protection. Thanks to that, we can enhance the prestige and position of Vietnam in the world, contributing to the construction and defense of the Fatherland.
Fifthly, in terms of information and communication, it is essential to rationally develop all types of information, effectively manage and prevent false information, affecting the stability and sustainable development of the country, as well as information that has a negative impact on society, infringing on citizens’ privacy. In addition, it is recommended to review and correct the situation of press agencies that don’t follow their principles and purposes and don’t comply with the law, especially the Press Law, for ensuring privacy. Educating, training, and regularly improving journalists’ morality also play an urgent role. Furthermore, it is imperative to effectively coordinate to ensure network security, secure correspondence, and enhance security for forms of private information transmission. Finally, we shall promptly prevent and handle acts of cyber attacks and illegal collection of personal information.
To sum up, privacy is a fundamental human right that underpins respect for human dignity and other values such as freedom of association, thought, and expression. In Vietnam, issues on privacy need to be thoroughly studied to ask competent authorities to issue legal regulations to regulate social relations related to privacy to meet the requirements of modern society.
References
1. La Khanh Tung. Some issues of privacy protection in the internet environment, printed in the book: The Right to Privacy. Hanoi: National Politics - The Truth, 2018.
2. Law on Electronic Transactions 2005. Article 46. Confidentiality in electronic transactions. 1. Agencies, organizations, and individuals shall have the right to select confidentiality-ensuring measures following the provisions of law when conducting e-transactions. 2. Agencies, organizations, and individuals may not use, provide, or disclose personal information or information of other agencies, organizations, and individuals they have access to or control in electronic transactions without their consent unless otherwise provided for by law.
3. Law on Protection of People's Health 1989. Article 25 of the Law on People’s Health Protection in 1989 stipulates the responsibilities of a physician: “must keep secret the items related to disease or personal information that he/ she is known on the patients”.
4. Nguyen Thi Que Anh, Vu Cong Giao, Ngo Minh Huong, La Khanh Tung. The Right to privacy. Hanoi: National Politics - The Truth, 2018.
5. Report of the Special Rapporteur on promoting and protecting freedom of opinion and expression, 2011, A/HRC/17/27.
6. Resolution No. 68/167 dated January 21st, 2014 on the right to privacy in the digital age of The United Nations Human Rights Council in the 68th session.
7. T. Thuy. More than 1/3 of the population of Vietnam owns Facebook accounts. Dan Tri electronic newspaper. Url: http://dantri.com.vn/suc-manh-so/hon-1-3-dan-so-viet-nam-so-huu-tai-khoan-facebook-20160318135855042.htm, updated at 02:00 P.M on March 18th, 2016.
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