COUNTRY OUTLINE TEMPLATE

2012 Update

Media Defense – Southeast Asia and Vietnam Human Rights Committee

Outline of Country Chapter – VIETNAM

  1. Overview/Introduction of the Legal System

General overview of the legal system (e.g., civil code v. common law), the courts, including description of the highest courts and types of media law cases they handle (e.g., Supreme Court v. Constitutional Court, etc), and the legal profession, including a discussion of the availability of lawyers to represent media law defendants.

The Legal System

Vietnam’s legal system is neither a common law nor a civil code system. Rather, it follows the former Soviet Union’s legal system whereby the National Assembly passes the Constitution and all other major laws. Decrees and/or Circulars from the relevant ministries in charge of the subject matters in question are then issued to provide further guidance on how the laws will be implemented and interpreted.

In general, the procedural steps can be summarized as follows:

Authority issuing laws Name and status of laws
National Assembly Constitution – Considered highest and supreme body of law
National Assembly Major laws such as the Criminal Code, the Civil Code, the Law on Foreign Investment, etc.
Relevant Sitting Committees of National Assembly Phap Lenh (Legal Orders) passed where no Laws are yet considered/passed by the National Assembly
Relevant Ministry Nghi Dinh (Decrees) passed to provide guidance on implementation and interpretation of new Laws passed
Relevant Ministry/Department Thong Tu (Circulars) passed to provide further guidance on implementation and interpretation of new Laws and Decrees
Prime Minister’s office Quyet Dinh (Decision) issued to provide further guidance on said Laws and/or Decrees

The Courts

The court system is also organised according to the model of the former Soviet Union, and arranged from top to bottom:

(a) The highest authority is the Supreme Court. It manages all district, provincial and city courts. Its tasks include, but are not limited to, the appointment of all judges through its recommendation to the President, the provision of guidance for lower courts to follow, and budgetary matters. It can also hear appeals and quash convictions from all lower courts.  The Supreme Court is divided into specialised courts including:

1. Appellate courts (hears matters of first instance of provincial courts being appealed);
2. Criminal court, civil court, labour court and administrative court. Courts that specialise in research and guiding lower courts in trial.
3. Council of Judges: reviews and hears trials of cassation, rehears judgments with legal effect that have been protested or appealed.

The Supreme Court however does not have the power to declare a law unconstitutional.

(b) Provincial and City Courts: divided into specialised courts of first instance or appellate hearings.

Depending on how large and important the cities are, the corresponding city courts are controlled by the central government. For example, Hanoi, Ho Chi Minh, Da Nang, and Hai Phong are considered 4 major cities in Vietnam which, under the law, are directly administered by the central government.

The district and provincial courts located elsewhere are considered the next level of lower courts. This is where irregularities often occur not least because not all judges are properly trained or in fact, professionally qualified. Some are appointed merely because they are trusted members of the VCP.

(c) District Courts: not divided.

There are currently some 683 district courts and 63 provincial, city courts.

There is no Constitutional Court in Vietnam.

The judiciary is not independent due to the existing political system in Vietnam being fully controlled by the VCP. Most notably, all judicial appointments must be vetted, approved, and held by VCP members. In cases involving civil and human rights defenders raising FOE issues, outcomes can often be predicted even before a hearing date is set. In addition, even in high profile cases involving constitutional issues and international treaties to which Vietnam is a signatory, the court rarely needs more than half a day to find the defendant guilty of the alleged offences.

Successful appeals against convictions in such cases are unheard of although in some cases sentences are reduced.  Bribery allegations and reversal of court decisions due to irregularities are not uncommon especially those involving the lower district and provincial courts adjudicating cases of a civil or common criminal nature.

The Legal Profession

In general, there is a shortage of trained lawyers and judges. The few judges who have been formally trained have often studied in former communist countries with similar legal traditions. As such there is a distinctive lack of competent media lawyers and/or judges.

In addition, given the oppressive environment facing lawyers who are willing to speak up on behalf of their clients in high-profile cases, it is safe to assume that currently there are less than 10 lawyers who are competent enough to take on media cases. Some of them however have either been disbarred or not allowed to resume their practice after being released from prison. This is despite the fact that there are more than 4000 lawyers listed as qualified to practice in Vietnam.

  1. Overview/Introduction of Media Laws

General overview of the laws and legal framework that impact the media, journalists and freedom of expression (FOE).  In addition to laws relating to defamation, the internet, privacy, contempt of court, national security/official secrets, sedition/incitement and freedom of information, please also include discussion of other media laws relevant in your country, such as lese majeste.  The purpose of this summary overview is to give highlights of media law so both lawyers and non-lawyers will understand the general concepts. You will go into more specific detail in the various sections below. After providing this summary, please also provide descriptions of the following components:

  1. The Constitution

Overview of the current version of your country’s Constitution and the relevant political and other contexts, especially as they relate to media law and FOE.

The Vietnamese Constitution, like the Constitution of most countries in the world, provides comprehensively for human rights. However, Article 4 provides for the absolute leadership of the Communist Party in Vietnam.  Specifically, it gives the right and opportunity to lead and manage the country to more than 3 million communist party members. Consequently, it deprives the rights and opportunities of more than 85 million Vietnamese of the right to freedom of speech, freedom of the press, of assembly, of association, information and protest.

Vietnam is currently amending its Constitution and the communist government has promised that the Constitutional amendment will strengthen and ensure the implementation of human rights in practice.  However, doubts remain as the Constitution at present already provides comprehensively for human rights which the government does not respect.

1. Constitutional Protection of Freedom of Speech and Expression (domestic)

 Cite and explain any provisions in the Constitution that protect FOE as they relate to the press. Describe any cases that have presented Constitutional challenges relating to FOE based on domestic law.

The right to freedom of expression and freedom of the press is stipulated in Article 69 of the 1992 Constitution of Vietnam.  This specifically stipulates that ‘Vietnamese citizens have the right to freedom of expression, of the press, and of information’.  However, there is no constitutional court to hear such matters.

Freedom of expression is also specified in Article 4 of the Law on the Press 1999. In practice, however, the VCP is protected by Article 4 of the Constitution which refers to it as the ‘sole guiding light leading the nation’, restricting these rights through the following legal and non-legal means.

First, the VCP ensures Vietnam’s Parliament, the National Assembly, passes laws restricting these rights. Given that most of the National Assembly’s members are also members of the VCP, this can be and has always been easily accomplished.

Second, where deemed necessary, specific provisions on such freedoms are termed in such a way that it can be left open for interpretation by both the government at first instance, and by the court if ever a case is brought before it. An example of this would be at the end of the relevant provision guaranteeing certain rights, the law will read ‘but such act must be in accordance with current legislation’ without specifying which legislation it refers to or how it should be interpreted.

Third, by ensuring that all mid level and senior government positions and judicial appointments are held by its members, the VCP can easily control any public challenges to its power and the outcome of any cases brought before the court.

Finally, through a variety of means, legal, economical or otherwise, the VCP controls public discourse and silences its critics despite specific guarantee under Article 69 of the Constitution.

Over the past few years, notable cases relating to the foregoing issues and constitutional challenges relating freedom of expression (FOE) include:

  • The cases of Blogger Dieu Cay, Ta Phong Tan, and Anh Ba Saigon who were recently sentenced to 12, 10, and 4 years imprisonment respectively. Initially, Blogger Dieu Cay was found guilty of ‘tax evasion’ and given a prison term. Civil rights defenders argued at the time that it was due to his writings critical of the GOV and past demonstrations protesting against the government’s policy on the Spratly archipelago dispute with China. After completing his sentence, the government then contended that he must be held for further investigation to ascertain whether or not he has conducted propaganda activities against the state. His trial was delayed several times until recently when he was found guilty of ‘spreading propaganda against the state’ together with 2 of his fellow bloggers and members of the ‘Free Press Club’ which he co-founded.
  • Writer Nguyen Xuan Nghia et al. All 6 defendants were found guilty of ‘conducting propaganda against the State’ under Article 88 of the Criminal Code. They were found distributing leaflets and putting up signs in public places calling on the Government of Vietnam (GOV) to allow and promote FOE.
  • Entrepreneur Tran Huynh Duy Thuc, Atty. Le Cong Dinh, Nguyen Tien Trung and Le Thang Long were found guilty of ‘conducting activities aimed at overthrowing the people’s government’ under Article 79 of the Criminal Code. Their sentences range from 5 to 16 years imprisonment. It was alleged that they wrote and published articles criticizing the GOV while promoting democracy and multi-party elections. The GOV further alleged that they formed a party contrary to existing law despite the fact that the Constitution guarantees all Vietnamese citizens have the right to freedom of association and of establishing or joining a party.
  • Legal scholar Cu Huy Ha Vu was found guilty of ‘conducting propaganda against the State’, again under Article 88 of the Criminal Code in a half day trial in Hanoi. The government alleged that after of his arrest in a hotel room in Ho Chi Minh City (on the suspicion that he was conducting extramarital affairs), it was discovered that his laptop contained materials and articles deemed anti-government. In response, Dr Vu (the son of one of Ho Chi Minh’s first cabinet members) confirmed that they belonged to him, as were the transcripts of interviews he had given over the years to media outlets such as the BBC or VOA Vietnamese Service. In these interviews, Dr Vu did indeed criticize the government and the VCP on a number of issues. Two years ago, he also filed the first case ever against the incumbent Prime Minister and current Politburo member, Nguyen Tan Dung. Dr Vu insisted however that this was well within his right under the Constitution. Unfortunately, as expected, the court did not respond nor discuss any of the constitutional issues raised by Dr Vu’s defense lawyers. His appeal recently heard was similarly dismissed and he was found guilty of the offence.
  1. Use of International Law and the Law of Other Countries in Interpreting Constitutional Provisions

Cite and explain any provisions in the Constitution that reference the status of international treaties and norms in domestic law. Describe any cases that have presented Constitutional challenges relating to FOE and have referred to international law or the law of other countries in interpreting constitutional provisions or statutes, not necessarily limited to freedom of expression and of the press.

Article 6 of the law on the signing and ratification of international treaties provides that:

1. Where regulations, and international agreements to which the Socialist Republic of Vietnam is a contracting party contain conflicting provisions for the same matter, the provisions of the international agreement applies.

2. The promulgation of a regulation must not hinder the implementation of an international agreement to which the Socialist Republic of Vietnam is a contracting party regarding the same matter.

3. Based on the requirements, the content and the nature of the international agreement, the National Assembly, the President and the Government accept the constraints of the international agreement directly applicable, in whole or in part, to agencies, organizations, and individuals where the provisions of the treaty are sufficiently clear and detailed to be performed; and are to amend, supplement or repeal or promulgate regulations to implement international agreements.

Defense lawyers in human rights cases relating to freedom of expression, of association, and of the press have argued that Vietnam’s current laws and existing government policies restricting such freedoms fundamentally violate basic human rights as enshrined under the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights (ICCPR), both of which Vietnam is a signatory to.  They have argued that these laws must be declared void and unlawful and the defendants be released. Unfortunately, to date, no case has ever been argued successfully before the court resulting in either the charges being dropped, dismissed, or the defendants being vindicated.

  1. Framework Laws Impacting Freedom of Expression and the Media
    1. Current Laws

Please describe (and attach) key statutes and subsidiary legislation relevant to freedom of expression and media law.

The relevant major laws affecting FOE and associated rights are:

  • The Criminal Code (Bo Luat Hinh Su)
  • Law on the Press 1999 (Luat Bao Chi)
  • Law on Publications 2004 (Luat Xuat Ban)
  • Relevant decrees and regulations (not laws but just as relevant and applicable) relating to Internet use and FOE.

It should be noted that the VCP and government control all print, broadcast, and electronic media. The Ministry of Information and Communication works under the guidance of the Communist Party Propaganda and Education Commission. These two bodies often intervened directly to dictate or censor a story. In addition, control over media content is ensured through self-censorship and threats of job dismissal and/or actual arrest.

Article 4 of Vietnam’s Law on the Press 1999 provides:
Freedom of the press, freedom of speech of the citizen in the press

Citizens have the right to:
1 – Be informed via the media in all aspects of the situation of the country and the world;
2 – Contact and provide information to press agencies and journalists; submit information, articles, photos and other files to the press but not those subject to the censorship of any organisations or individual, and must bear legal responsibility for the information content;
3 – State their opinion on the situation of the country and the world;
4 – Provide their opinion on the construction and implementation of the direction, guidelines and policies of the Party and the laws of the State;
5 – Provide comments, criticisms, suggestions, complaints and denunciations to the press regarding the organisation of the Party and State agencies, social organisations and members of those organisations.

However, Article 18 provides that only licensed organisations can establish a press agency. Private news agencies are banned.
Further, Article 88 of the Criminal Code states that anyone who uses freedom of speech or freedom of the press to criticise the state shall be sentenced to imprisonment.

Article 88.- Conducting propaganda against the Socialist Republic of Vietnam

1. Those who commit one of the following acts against the Socialist Republic of Vietnam shall be sentenced to between three and twelve years of imprisonment:

a) Propagating against, distorting and/or defaming the people’s administration;

b) Propagating psychological warfare and spreading fabricated news in order to foment confusion among people;

c) Making, storing and/or circulating documents and/or cultural products with contents against the Socialist Republic of Vietnam.

2. In the case of committing less serious crimes, the offenders shall be sentenced to between ten and twenty years of imprisonment.

The Law on the Press 1999 also provides:

Article 9. Corrections in the press

Where the press has published false information, misrepresentation, slander, or insulted the honour of the organization or the honor and dignity of citizens, it must make corrections and apologise or publish or broadcast said corrections for the organisation or citizen.

Where the press fails to correct or corrects to an unsatisfactory standard; or does not publish or broadcast the corrections for the institution or citizens without good reason, the organisation or citizen has the right to complain to the press agency or take court action.

The correction for the press organization or citizen must be published or broadcast in a timely manner and proportionate to the information required to be corrected.

Article 10. Matters not to be published in the press

For the right of free speech in the press to be exercised properly, the media must comply with the following:
1 – Do not incite people against the Socialist Republic of Vietnam, undermining the unity of the nation;
2 – Do not incite violence or propaganda wars of aggression or sow hatred among nations and peoples, or incite indecent, depraved or evil crimes;
3 – Not to disclose State secrets: military, security, economic, foreign and other information confidential by law;
4 – Do not give false information, lies, slander to the honor of the organization or honor and dignity of citizens.

Similarly, the Law on Publications 2004 provides:
Article 10. Prohibited acts in publishing

1. State propaganda against the Socialist Republic of Vietnam; undermining the unity of the entire nation.
2. Propaganda, inciting a war of aggression, sowing hatred and conflict between the peoples and citizens of all nations; inciting violence; spreading reactionary thoughts, obscenity and debauchery, crime, social evils, superstition, and destructive habits and customs.
3. Disclosing secrets of the Party and state, military, security, economic and foreign policy secrets, personal privacy of the citizen and other information confidential by law.
4. Distort the historical truth; deny revolutionary achievements; insult the people, great leaders, national heros; slander or insult the reputation of agencies and organisations, or honor and dignity of the individual.

Article 44. Handling of violations in distribution of published materials

1. Upon the detection of publications with content in violation of the provisions of Article 10 of this Law, the distributor must report the publication to the state publishing authority.
2. The distributor, organizations and individuals involved in distribution, committing any of the following acts shall, depending on the nature and seriousness of their violations, be subject to temporary suspension from publishing, suspension from publishing, recovery, confiscation, ban from circulation, destruction of violating publications, suspension of import licence, or criminal prosecution; if damaged is caused, they must pay compensation in accordance with law:
a) Distribution of publications that comprise of illegal publishing, printing or imports;
b) Distribution of publications that are subject to suspension from printing, a circulation ban, recovery, confiscation or destruction;
c) Sale of non-saleable publications;
d) Consumption or distribution of publications specially printed for foreign consumption on Vietnamese territory;
e) Import of publications not registered on the list of publications or made in contravention of the registered list.
3. Where the state publishing agency has temporarily suspended distribution, suspended distribution, recovered, or confiscated violating publications, the publisher and the importer of infringing publications must pay compensation damages to the distributor; if the decision was made in error, the state publishing agency must pay compensation to the publisher or the importer of publications.

Current press laws also require journalists to pay monetary damages to individuals or organizations deemed harmed as a result of journalists’ reporting, even if the reports are verified as true. In addition, recent amendments to the law made it clear that all reporting must be ‘in the best interests of the people and the State’. Article 10 of the Press Law specifically prohibits using freedom of expression to ‘harm the unity of the people’ (subsection 1), ‘reveal state secrets and other secrets’ (subsection 3), and ‘spread disinformation, distortion, insult resulting in harm to the reputation and integrity of organizations and the people’ (subsection 4).

A new decree issued by the MIC in late 2010 also requires the local press to seek advance permission before reporting on foreign news stories. Foreign journalists must be approved by the Ministry of Foreign Affairs’ (MFA) press center and they must be based in Hanoi while Vietnamese employees working for foreign media must be registered with the MFA. Foreign journalists are required to renew their visas every 3 to 6 months and under the law, they are required to address all questions to government agencies through the MFA.

Begun in 2008 soon after Vietnam joined the World Trade Organization (WTO), the government continues to suppress freedom of expression and of the press through its ‘rectification’ campaign. In early 2010, Prime Minister Nguyen Tan Dung specifically stated in his well-publicized speeches that ‘journalists must be loyal soldiers serving the nation’. He called on the local press to ‘fight against sedition’ and ‘not to report information that harms the country’s interests’

At the same time, at a conference on media responsibility, the MIC demanded that they must fight ‘against false arguments, slanders, and accusations against Vietnam by reactionary forces’. In late 2010, the MIC reprimanded the news Web site Vietnam Net’s editor in chief and two reporters for publishing the results of Transparency International’s survey on corruption in Vietnam. The author of the article was subsequently denied renewal of her press license.

  1. Recent Legislative Developments

Please describe (and attach) any relevant proposed legislation and/or amendments, and explain what is likely to happen and the impact on FOE and the media. (E.g., Draft Penal Code and its impact on media)

See discussion on Internet Regulation.

III. Defamation

  1. Overview of the laws (civil and criminal) that prohibit defamation.

Overview of the trends in the cases brought in recent years. (e.g., past 5 years or relevant time frame). What types of cases are being brought (e.g., criminal prosecutions v. common law civil cases, etc )? Are cases increasing and if so, what is the impact on both domestic and foreign media? (e.g., Media v. individuals? Provincial v. major cities? Local v. national media? Domestic media v. foreign media?)

Also, summarize general principles of who can sue or be sued, the accepted definition of libel/slander, what amounts to matters of public interest, privilege, and whether there are any restrictions in the manner some defamation cases can be reported on. Please note any significant differences between criminal and civil defamation cases (e.g., parties, definitions, defenses, etc). The purpose of this summary overview is to give highlights of defamation law so both lawyers and non-lawyers will understand  general concepts. You will go into more specific detail in the sections below.

The Criminal Code contains two provisions on libel and slander.
Article 88 protects the communist regime:

Article 88.- Conducting propaganda against the Socialist Republic of Vietnam

1. Those who commit one of the following acts against the Socialist Republic of Vietnam shall be sentenced to between three and twelve years of imprisonment:

a) Propagating against, distorting and/or defaming the people’s administration;

b) Propagating psychological warfare and spreading fabricated news in order to foment confusion among people;

c) Making, storing and/or circulating documents and/or cultural products with contents against the Socialist Republic of Vietnam.

2. In the case of committing less serious crimes, the offenders shall be sentenced to between ten and twenty years of imprisonment.

Article 122 protects the citizen throught the criminalization of slander:

1. Any person who lies or spreads a lie, knowing it is a lie, to hurt the reputation of or damage a right or legitimate interest of another, or fabricates a crime by another and accuses them before a competent authority, shall be subject to a warning and non-custodial reform for up to two years or a prison term of between three months and two years.
2. The commission of the crime in one of the following circumstances shall attract a prison sentence of between one and seven years:

a) In an organized manner;
b) Abusing one’s position or power;
c) Towards many people;
d) Towards one’s grandfather, grandmother, father, mother, or a person who has taught, nurtured, cared, educated or healed the accused;
e) Towards a public servant;
e) Accusing another person of a very serious or particularly serious crime.

3. The offender may also be subject to a fine of between one million and ten million dong, a ban from holding certain posts, practicing or doing certain jobs for one to five years.

  1. Criminal defamation
  1. 1.      Sources of the laws on criminal defamation. Include detailed description of elements – such as accepted definition of defamation; parties that can sue (e.g., corporations, public officials, groups, etc) and be sued (publishers, printers, etc) – and accepted defenses (e.g., truth, privilege, fair comment or opinion, etc).

 See Article 122 of the Criminal Code above.

 2.      Significant cases. Please describe several significant recent criminal defamation cases, focusing on those which provide useful lessons, especially if the Court made some statements protective of FOE. While we are most interested in cases against journalists and media houses, please include cases against other persons (NGO leaders, opposition leaders) IF the case bears significance for the media or if the court made positive statements about freedom of FOE.  Please describe any cases that address the following issues: truth provides a defense; journalists may protect their sources; statements are protected because in the public interest; public figures must tolerate greater criticism; mere opinions cannot be defamatory; the exercise of due diligence in checking accuracy, or good faith in making a mistake, or a prompt correction, provides a defense or mitigation. In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of charges/parties/issues tried/defenses used/litigation strategies, if known/case outcome including appeals.

Not applicable in Vietnam. Law not yet developed to such an extent.

  1. 3.      Legislative or Other Developments. Describe any proposed changes for criminal defamation and the likely impact on freedom of expression and the media.

 None.

 4.      Insult laws. Describe any insult laws enacted by your country and the cases brought under those laws.

 None.

 Civil defamation

  1. 1.      Sources of the laws on civil defamation. Include detailed description of elements – such as accepted definition of defamation; parties that can sue (e.g., corporations, public officials, groups, etc) and be sued (publishers, printers, etc) – and accepted defenses (e.g., truth, privilege, whether the courts have considered the Reynolds defense, fair comment or opinion, etc).

 The Civil Code states:

Article 37.- The right to protection of honor, dignity and prestige

Individuals’ honor, dignity and prestige shall be respected and protected by law.

Article 611.- Damage caused by infringement upon honor, dignity or prestige

1. Damage caused by infringement upon the honor, dignity or prestige of individuals or damage caused by infringement upon the honor or prestige of legal persons or other subjects shall cover:

a/ The reasonable expenses for limiting and/or remedying the damage;

b/ The actually lost or reduced income.

2. The persons who infringe upon the honor, dignity or prestige of others must compensate for damage as provided for in Clause 1 of this Article and pay a sum of money as compensation for mental suffering caused to such persons. The levels of compensation for mental suffering shall be agreed upon by the parties; if there is no such agreement, the maximum compensation level shall not exceed ten months’ minimum salary set by the State.

 While the law has been promulgated for quite sometime, its applicability remains elusive. Since last year, civil rights defenders and groups have attempted to sue and lodge complaints with the authorities regarding what they deemed were ‘defamation’ perpertrated by the government-run news agencies themselves. Especially as it relates to their weekly protests and conducts against Chinese aggression in the South China Sea.

 As expected, their complaints have been ignored.

 2.      Significant cases. Please describe several significant recent civil defamation cases, focusing on those which provide useful lessons, especially if the Court made some statements protective of FOE. While we are most interested in cases against journalists and media houses, please include cases against other persons (NGO leaders, opposition leaders) IF the case bears significance for the media or if the court made positive statements about freedom of FOE.  Please describe any cases that address the following issues: truth provides a defense; journalists may protect their sources; statements are protected because in the public interest; public figures must tolerate greater criticism; mere opinions cannot be defamatory; the exercise of due diligence in checking accuracy, or good faith in making a mistake, or a prompt correction, provides a defense or mitigation. In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of the complaint/parties/issues tried/defenses used/litigation strategies if known/case outcome including appeals.

 Not yet developed.

 3.      Legislative or Other Developments. Describe any proposed changes for civil defamation and the likely impact on freedom of expression and the media.

 None.

 IV. Internet Laws or Regulations

  1. Current Laws or Regulations. Describe any current laws or regulations that impact FOE on the internet and/or impose restrictions for media, bloggers, ISPs, webmasters, social media, mobile applications, etc. Include description of who can be held liable for what offenses and any accepted defenses.

 While there have been talks of the need for the government to pass a law governing the use of the internet for quite sometime, to date, the only internet regulation in Vietnam is Decree 97 issued by the Prime Minister’s Office in 2008 which details the government’s role in the management, provision, and use of Internet services and electronic information on the Internet.

 Since then, however, the Ministry of Information and Communication (MIC) and several city and provincial people’s committees have issued additional regulations to control online access. The most notable ones are:

 The MIC’s regulations requiring social networking sites and Web sites that provide information in the areas of ‘politics, economics, culture, and society’ to register and receive a license before operation.

  • The MIC requiring owners of domestic Web sites, including those operated by foreign entities, to register their sites with the government and submit their planned content and scope for approval.
  • Regulations requiring global Internet companies with blogging platforms operating in the country to report every six months and, if requested, to provide information about individual bloggers.
  • The Hanoi People’s Committee issuing regulations requiring all ‘Internet retailers’ to install government-approved software to monitor online activities.
  • Current regulations requiring cybercafés to register the personal information of their customers and store records of Internet sites visited by customers.
  • The government only allowing access to the Internet through a limited number of Internet service providers (ISP), all of which are government owned and controlled. It forbids direct access to the Internet through foreign ISPs and requires ISPs to store information transmitted on the Internet for at least 15 days and to provide technical assistance and workspace to public security officers for them to monitor Internet activities if deemed necessary.

 Decree 97/2008 Regulation on the management of the internet provides:

Article 6.- Prohibited acts

1. Abusing the Internet for the purposes of:

a/ Opposing the State of the Socialist Republic of Vietnam, undermining national security and social order and safety; undermining the unity of the nation; spreading propaganda on wars of aggression; sowing hatred and conflict between nations, ethnic groups and religions; spreading propaganda on and inciting violence, obscenity and debauchery, crime, social evils, superstition; and destroying national fine customs and traditions;

b/ Disclosing state secrets and military, security, economic, foreign relation and other secrets as prescribed by law;

c/ Spreading information that distorts, slanders and hurts the prestige of organizations; the honor and dignity of citizens;© VIETNAM

d/ Abusing the Internet for advertising, promoting, buying and selling goods and services banned by law.

2. Disrupting, destroying equipment systems and illegally obstructing the management, provision and use of Internet services and electronic information on the Internet.

3. Stealing and illegally using organizations’ and individuals’ passwords, keywords and private information of organizations and individuals on the Internet.

4. Creating and installing harmful computer virus programs and software in order to commit any of acts specified in Article 71 of the Law on Information Technology.

 Law on Publishing 2004:

Article 25. Publishing on computer information network (Internet)
1. Information published on the internet must be made by the publisher and subject to the provisions of this Law.
Publications legally circulated on the internet
2. Publications on the internet shall comply with the provisions of the Government.

 Significant cases. Provide description of significant cases, especially if the Court provided any guidance on implementation and enforcement of the laws/regulations and/or provided guidance on FOE issues.  In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of charges/parties/issues tried/defenses used/litigation strategies if known/case outcome including appeals.

 The government is increasingly focusing their efforts against free speech online. According to the US State Department, in 2010 alone ‘at least 50 websites critical of the government and hosted overseas were targeted by distributed denial-of-service attacks’. News portals are hacked while editors are repeatedly questioned by the public security apparatus (one example being Professor Nguyen Hue Chi who is the editor of the hugely popular independent website Bauxite Vietnam).

 In March 2010, Google’s security team confirmed that malware had been used to spy on Vietnamese democracy activists and to launch ‘distributed denial-of-service attacks against blogs containing messages of political dissent’. McAfee, the online security company, also concluded that denial of service attacks were ‘politically motivated’ and that the perpetrators ‘have some allegiance to the government of the Socialist Republic of Vietnam’. Facebook, the BBC, VOA, and RFA Vietnamese Service are routinely blocked as well as other overseas Vietnamese language newspapers and websites.

 These measures have negatively and significantly affected freedom of expression in the country.

 Proposed legislation or regulations. Provide description of any proposed legislation/regulations with potential to impact FOE on the Internet.

 In June this year, a foreign embassy in Hanoi organized a meeting to discuss the new draft ‘Internet Management Regulation’. It is perhaps best to summarize the draft per their meeting minutes and as follows:

 A consultant gave a presentation on the government’s new draft Internet management legislation, which the industry had expected to see in final form this month but which has not yet been published. She explained that the government is attempting to gather multiple comments on the legislation, which it understands will be very difficult to implement as management of Internet content would require cooperation from foreign service providers popular in Vietnam (such as Yahoo, Facebook and Google) – something these companies do not seem willing to offer.

She noted that some of the provisions in the draft legislation – such as one demanding that all bloggers write under their own names and not use acronyms – will be impossible to implement because Vietnam lacks the technology to enforce such a rule. She concluded that the legislation, if and when issued, is unlikely to have a significant impact on the use of online forums, blogs or websites that the government of Vietnam is attempting to control.

However, it is possible that audience numbers for these sites may fall if Vietnamese web users have greater faith in the state’s ability to track their movements online than is actually the case.

Two bloggers then presented their thoughts on the legality and impact of the legislation:

BJ agreed with the points made by the consultant but added a number of other specific points about the contents of the draft document. BL noted that the legislation, if passed into law, will intrude on citizen’s rights because it imposes sanctions on web users who abuse ‘good morals’ and ‘good customs’ and gives the government the right to judge what these are, making the document open interpretation and also a violation of basic legal principles because morals and customs cannot be dictated by law.

He added that under the draft legislation, bloggers will be penalised for things over which they cannot be legally held responsible. For example, it says that they must be responsible for the content of linked sites and of the comments that readers post on their blogs, but by doing so the government makes bloggers legally responsible for others’ actions: something that cannot be done.

BL noted that the government also gives itself more power to control or block foreign blogs and will require overseas service providers to set up representative offices in Vietnam and comply with Vietnamese law. However, in recent years, bloggers and facebookers have easily bypassed firewalls and can be expected to continue doing so.

The consultant reiterated that few foreign service providers are likely to agree to set up offices in Vietnam that bind their operations to Vietnamese law.

BL noted that most of Vietnam’s controversial bloggers use foreign social networks and blog hosts. Only a very small minority use domestic services, which are more commonly used by students and young people whose blogs focus on friendship and lifestyle issues. But even if the government tries to block foreign service providers, he said bloggers will not stop using them.  Such bloggers have got a ‘Facebook addiction,’ and are not willing to give up the freedom to say things they wouldn’t otherwise be able to say.

He added that most Vietnamese web users are very savvy and are able to bypass firewalls easily and said “we have evidence from the past that the more they try to control the internet the more they tempt bloggers to fight back.  For example, when Dieu Cay[1] was jailed, they got rid of one but gained 100 new bloggers.”

The following facts are also worth mentioning:

1. Over 70% of Vietnamese netizens are under 34 years old

2. In 2003, 4% of the population were internet users, but by 2011 that figure had grown to 35%, or 30 million users, 30 times bigger and fastest grow in Asia

3. The use of smart phones to access the Internet is growing massively, from 27% in 2010 to 56% in 2011

4. Most Internet users use the Web to search or to read news. 12% write blogs, and;

5. Zingme, a local social network, now has 7 million users, while Facebook has 5 million.

 V. Privacy

 Not yet applicable and developed in Vietnam.

 VI. Contempt of Court

 Not yet applicable and developed in Vietnam.

 VII. Sedition/Incitement

  1. Current Laws or Regulations. Describe any current laws or regulations that impact FOE and/or impose restrictions for the media. Include description of who can be held liable for what offenses and any accepted defenses.

 Article 88 of the Criminal Code, as described above.

Article 10 of the Law on the Press, as described above.

Article 10 of the Law on Publishing, as described above.

Article 6 of the Regulation on the Management of the Internet, as described above.

 Article 79 of the Criminal Code: ‘conducting activities aimed at overthrowing the government’.

 In addition, the Criminal Code includes further provisions that the government uses to restrict freedom of speech and of the press. It confirms and defines the crimes of ‘sabotaging the infrastructure of socialism’, ‘taking advantage of democratic freedoms and rights to violate the interests of the state and social organizations’, ‘causing public disorder to oppose the people’s government’, and ‘sowing divisions between religious and non-religious people’ as serious offences against national security.

 Specifically, Part 1 of Article 88 reads: ‘anyone who conducts one of the following activities against the government of the Socialist Republic of Vietnam shall be imprisoned between 3 to 12 years:

  1. Conduct propaganda against, defame the people’s government’

 Approximately, twenty cases were tried under the above-mentioned provisions between 2009 and 2010. Three cases were tried in early 2011 and more were tried in 2012. In general, while the number of human rights/FOE cases remain the same each year, heavier sentences have been imposed especially on cases involving well-known lawyers and activists. In March 2010, Bloc 8406, a well-known democracy movement inside Vietnam published a list of 38 of its members imprisoned for their affiliation with the movement.

 Significant cases. Provide description of significant cases, especially if the Court provided any guidance on implementation and enforcement of the laws/regulations and/or provided guidance on FOE issues.  In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of charges/parties/issues tried/defenses used/litigation strategies if known/case outcome including appeals.

 Four defendants, Tran Huynh Duy Thuc, Le Cong Dinh, Nguyen Tien Trung, and Le Hoang Long were tried jointly in January 2010 for violating article 79 of the Criminal Code which prohibits ‘activities aimed at overthrowing the people’s government’. Three months later, four activists were convicted for violating article 91 for ‘fleeing abroad to oppose the government’. They were each sentenced to 6 – 10 years’ imprisonment and administrative probation.

 The recent cases of Dieu Cay, Ta Phong Tan, Anh Ba Saigon and Dinh Dang Dinh also warrant attention as they were all found guilty under Article 88 within a few hours of their first and only trial concerning the charge. Though it was said to be a public trial, family members and supporters were denied entrance with many of them being arrested, harrassed and badly beaten up by the police.

 Proposed legislation or regulations. Provide description of any proposed legislation/regulations with potential to impact FOE or impose restrictions for the media.

 None.

 VIII. National Security/State Secrets

  1. Current Laws or Regulations. Describe any current laws or regulations that impact FOE and/or impose restrictions for the media. Include description of who can be held liable for what offenses and any accepted defenses.

Article 263.- Deliberately disclosing State secrets; appropriating, trading in and/or destroying State secret documents

1. Those who deliberately disclose State secrets or appropriate, trade in and/or destroy State secret documents in circumstances other than those defined in Article 80 of this Code, shall be sentenced to between two and seven years of imprisonment.

2. Committing the crime and causing serious consequences, the offenders shall be sentenced to between five and ten years of imprisonment.

3. Committing the crime and causing very serious or particularly serious consequences, the offenders shall be sentenced to between ten and fifteen years of imprisonment.

4. The offenders may also be subject to a fine of between ten million dong and one hundred million dong, a ban from holding certain posts, practicing certain occupations or doing certain jobs for one to five years.

Article 264.- Unintentionally disclosing State secrets, losing State secret documents

1. Those who unintentionally disclose State secrets or lose State secret documents shall be sentenced to non-custodial reform for up to three years or between six months and three years of imprisonment.

2. If causing serious consequences, the offenders shall be sentenced to between two and seven years of imprisonment.

3. The offenders may also be banned from holding certain posts, practicing certain occupations or doing certain jobs for one to five years.

 Significant cases. Provide description of significant cases, especially if the Court provided any guidance on implementation and enforcement of the laws/regulations and/or provided guidance on FOE issues.  In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of charges/parties/issues tried/defenses used/litigation strategies if known/case outcome including appeals.

Despite the law and procedures being clearly stated and defined, the following practices should be noted in cases involving national security issues:

 The constitution provides that all defendants are innocent until proven guilty; however, in practice, no case has ever been found not guilty or needed more than a day to reach judgment on appeal.

  • Defendants and their defense lawyers have the right to have access to government evidence in advance of the trial. They also have the right to cross examine witnesses and challenge statements. However, defense lawyers are commonly denied access until the last minute. Judges routinely stop defense lawyers from making arguments on behalf of their clients in court because they are deemed reactionary.
  • Juries are not used and district and provincial courts do not publish the proceedings.
  • While trials are generally open to the public, in sensitive cases, even family members of the defendants are not allowed in the court room.
  • Defense lawyers are routinely harassed, detained, and in some cases, disbarred for their representation of their clients. They include: Le Quoc Quan, Le Tran Luat, Le Thi Cong Nhan, and Huynh Van Dong. The authorities also pressure defense lawyers not to take on activists as clients.

 Proposed legislation or regulations. Provide description of any proposed legislation/regulations with potential to impact FOE or impose restrictions for the media.

 None

 IX. Freedom of Information/Right to Information

  1. Current Laws or Regulations. Describe any current Freedom of Information (FOI)/ Right to Information (RTI) laws or regulations that mandate government release of public information. Also, include description of the appeal process after denial of an information request, including whether the case can appealed to a court. Please provide any relevant trends such as the types of information denials being litigated and the parties pursuing the cases.

 Not applicable.

 Significant cases. Provide description of significant cases, especially if the Court provided any guidance on implementation and enforcement of FOI/RTI laws/regulations and/or provided guidance on FOI/RTI-related issues.  In your case descriptions, please include case name, date, citation, summary of scenario and statement that formed basis of charges/parties/issues tried/defenses used/litigation strategies if known/case outcome including appeals.

 Not applicable.

 Proposed legislation or regulations. Provide description of any proposed legislation/regulations with potential to impact FOI/RTI rights and/or impose restrictions for the media’s abilities to obtain public information.

 Not applicable.

 X. Other major content restrictions on press freedom specific to your country.

 Covered in Section B above.

 XI. Appeals

State the mechanisms and grounds for appealing an adverse judgment. Is it possible to take an appeal on the ground that a law, or its application, violated the constitution? Are adverse decisions often appealed? If not, do you have any views as to why not?

 As already mentioned earlier, in Vietnam there is currently no constitutional court or any court that can hear and/or decide on constitutional matters. While adverse decisions are often appealed as it is allowed by law, sentences are not usually reduced nor the findings reversed. Given the existing political system in Vietnam, it is safe to assume that convictions and the corresponding sentences are pre-determined and approved before trial.

 Criminal Procedure Code

Article 20.- To implement the two-level trial regime

1. Courts shall implement the two-level trial regime.

First-instance judgments and decisions of courts may be appealed or protested against under the provisions of this Code.

First-instance judgments and decisions, if not appealed or protested against within the time limits prescribed by this Code, shall be legally valid. For first-instance judgments or decisions which are appealed or protested against, the cases must be brought to appellate trial. Appellate judgments and decisions shall be legally valid.

2. For legally valid court judgments and decisions, if law violations are detected or new circumstances emerge, they shall be reviewed according to the cassation or re-opening procedures.

Article 50.- Defendants

1. Defendants are persons whom the courts have decided to bring for trial.

2. Defendants have the following rights:

i/ To appeal against judgments and decisions of the courts;

j/ To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence.

Article 237.- Consequences of appeals and protests

1. Parts of the judgments, which are appealed or protested against, shall not be executed, except for the cases prescribed in Clause 2, Article 255 of this Code. When the whole judgments are appealed or protested against, the whole judgments shall not be executed.

2. The courts of first instance must send the case files and appeals or protests to the courts of appeal within seven days after the expiry of the time limit for lodging appeals or protests.

Article 238.- Supplementation, change and withdrawal of appeals or protests

1. Before the opening of or during the appellate-court sessions, the appellants or procuracies shall have the right to supplement or change their appeals or protests, provided that such supplementation or change must not aggregate the situation of the defendants; or to withdraw part or the whole of their appeals or protests.

2. In cases where the whole appeals or protests are withdrawn at the court sessions, the appellate trial must be ceased. First-instance judgments shall become legally valid from the date the courts of appeal issue decisions to cease the appellate trial.

 XII. Attacks on Journalists and Media Houses

Summarize the attacks on journalists – killings and other serious attacks – in 2009-2012. Please describe any trends. If there have been any effective strategies to protest or deter such attacks, describe them.

 Apart from the above-mentioned cases, there were threats made and attacks on several journalists relating to their report on stories considered ‘sensitive’. One was assaulted while reporting on illegal poultry imports while a couple of other reporters were attacked while investigating illegal land encroachment by the local authorities.

 In general, however, due to the strict restrictions as stipulated by the press law, almost all reporters exercise caution and self-censorship while editors work hard to ensure that only permissible subject matters are reported and published. Current practices thus severely limit investigative reporting throughout Vietnam.

 XIII. Using the Media, and Other Non-legal Strategies to Help Win a Case

Describe any cases that were won or where charges were dropped because of the skillful mobilization of media attention or other non-legal strategies.

 Not applicable.

 XIV. Press Councils

If your country has a press council, or comparable institution, please describe how it operates. Is there any institution, such as the Bar Association, or a Working Group, that sometimes tries to persuade the government to drop or reduce charges?

 There is a Journalists Association (Hoi Nha Bao) in Vietnam. But like all other organizations, professional or otherwise, it is controlled by the VCP through the appointment of a senior VCP member as its leader. Its role is to provide monitoring of activities and guidance on the reporting of relevant matters, not to protect the rights of journalists.

 As already indicated, all mass and/or professional organizations in Vietnam are set up and controlled by the VCP and its affiliations. There is no independent group allowed to operate including foreign NGOs which must enter into a joint partnership with a local organization before they can be registered.

 The Vietnam Bar Federation (VBF) which was created in May 2009 to represent practicing lawyers falls under the supervision of the Vietnam Fatherland Front (VFF), an umbrella group that monitors all the mass organizations and vets all candidates for leadership positions within the organizations. The VFF in turn works closely and co-ordinates with the Ministry of Justice and the Vietnam Lawyers Association.

 Unfortunately, the VBF and local bar associations follow guidance from the VCP.  In the case of Atty. Le Cong Dinh, despite the fact that he was the Vice Chairman of the Ho Chi Minh City Bar Association at the time of his arrest, it was this Bar that chose to disbar him even before he was found guilty by the court.

 In the case of Atty. Huynh Van Dong, it was the provincial Daklak Bar Association where he was a member that decided to disbar him in August 2011 citing, among other things, his representation of land rights activists as conduct unbecoming of a lawyer.

 It must be noted that membership in the VCP is a prerequisite to career advancement for all government and government-linked entities or VCP-controlled mass organizations.

 XV. Any Other Issues Affecting Freedom of Expression

Vietnam’s recent election to select members of the National Assembly remains the same as in previous years. The VFF chose and vetted all candidates prior to the election. As a result, all of the senior leaders of the National Assembly and over 90% of its members are party members. Thus, all authority and political power is vested in the VCP. Political opposition movements are illegal and dissenting views are not tolerated.

 This is by far the most important factor that fundamentally affects freedom of expression in Vietnam.

 Given the restriction on the local media, often it is only the foreign or overseas Vietnamese media that provides wide coverage and analysis of the said cases. Once a sentence is handed down, the local media only reports and repeats statements issued by the government media office on the matter.

 As previously mentioned, in almost all cases involving FOE issues and/or civil and political rights, the Court usually takes less than a day to find the defendants guilty. As such there is little debate allowed between the government prosecutor and the defense team let alone any interpretation done by the Court. In addition, more often than not, bloggers and civil rights defendants are routinely arrested and later released without trial. The most notable cases over the past few years include:

 Le Nguyen Huong Tra (Co Gai Do Long) was arrested after posting her blog critical of the son of Ministry of Public Security Vice Minister Nguyen Khanh Toan.

  1. Nguyen Van Hai (Dieu Cay) was transferred to a new jail on the day of his scheduled release and rearrested for violating article 88 based on old blog postings written before he was sent to prison. To date his family does not know where he is being held and is not allowed to visit him.
  2. Vi Duc Hoi, a former Communist Party official, was arrested for online postings critical of the government and the VCP and charged with violating article 88.
  3. Blogger Huy Duc was dismissed from his job for his blog postings commenting on politically sensitive matters while other bloggers affiliated with the Free Journalists Club such as Nguoi Buon Gio (Wind Trader), Anh Ba Saigon (Phan Thanh Hai), and others like Me Nam (Mushroom’s Mother), Nguyen Xuan Dien are routinely harassed, threatened, and detained.
  4. Tran Huynh Duy Thuc, a successful entrepreneur and blogger known as ‘Change We Need’ who regularly reported on corruption in the prime minister’s family, was sentenced to 16 years’ imprisonment for subversion together with well-known human rights lawyer, Le Cong Dinh.

 Note: the increasing influence of internet-based news-gathering groups such as Dan Lam Bao or independent bloggers such as Nguyen Xuan Dien, Me Nam, Anh Ba Sam, etc… whose writings posted on the net continue to address issues deemed sensitive such as police corruption and brutality, illegal land grabs by the local authorities, territorial dispute with China over the Spratly and Paracel Islands, etc.  Their blogs are followed and read daily by millions of Vietnamese hunger for uncensored news.  Major incidents since last year include:

  • Illegal land grab by Tien Lang local authorities in Northern Vietnam: The first ever violent opposition by a local family against the authorities’ decision to confiscate their land resulted in the dismissal and demotion of the local cadres involved (by direct order from the Prime Minister’s Office). The news was first reported by bloggers and quickly dominated political and social commentary online before the government gave the green light for government-censored news agency to cover the matter. All of Vietnam’s 700-odd newspapers and magazines are run and controlled by the government.
  • Police brutality resulting in the death of an ageing man who forgot to wear his helmet: The man was ultimately beaten to death while in police custody. To this day, his family has been seeking legal remedy and compensation against the police involved as assisted and reported by independent bloggers.
  • Continued harassment and persecution of bloggers and dissidents who dare challenge censorship laws and the government’s monopoly on power: Bloggers such as Me Nam and Nguyen Xuan Dien face routine harassment and continued threats for their unauthorized news-gathering activities and commentary on social issues. Others such as Journalist Dieu Cay or Catholic youth activists were sentenced to imprisonment in half-day trials. Independently-run blogspots and social media websites such as Facebook are constantly attacked and blocked. Civil rights defenders such as Atty. Huynh Van Dong who attended our training in Kuala Lumpur last year are still barred from practicing and traveling abroad.

By using illegal means and a wide range of tactics including threats, physical and mental abuse, harassment, and detention without trial to instill fear in the people, the government has been partly successful in suppressing free speech. Nevertheless, a more technological savvy generation of young Vietnamese who are more aware of their rights and willingness to defend them have been at the forefront in criticizing government policies and their monopoly on power. They include lawyers, religious leaders, writers, and perhaps most significantly, bloggers. There is an urgent need to empower them. And it is this particular aspect of the debate, if properly identified and supported, that will have far-reaching effect in the years to come concerning FOE in Vietnam.

[1] A critical blogger who was jailed on trumped up charges of tax evasion.