1. Understanding ISPs:

In the bustling realm of the internet, information flows through various channels, and Intermediary Service Providers (ISPs) act as crucial intermediaries. Essentially, ISPs serve as the middlemen, connecting you to the vast online world. Think of them as the roads, bridges, and tunnels that enable your data to travel seamlessly from your device to websites and online services.

Here's a breakdown of the different types of ISPs and their roles:

Access Providers: These are the companies that provide you with the initial connection to the internet, like fiber optic cables or mobile data networks. They're the gateway through which your device enters the online world.
Data Storage Providers: They offer spaces for individuals and businesses to store their data online, like cloud storage services. Think of them as digital warehouses where you can keep your files, photos, and documents accessible from anywhere.
Social Networks: Online platforms like Facebook, Twitter, and YouTube fall under this category. They provide spaces for social interaction, content sharing, and communication, creating communities within the larger digital landscape.
Search Engines: Google, Bing, and DuckDuckGo are prominent examples. These platforms help you navigate the vast information available online by indexing websites and providing search results based on your queries.
Streaming Services: Netflix, Spotify, and YouTube Music are some popular examples. They specialize in delivering audio and video content directly to your devices, offering entertainment and information on demand.
E-commerce Platforms: They facilitate online shopping experiences, allowing businesses to sell products and consumers to purchase them conveniently. Amazon, eBay, and Shopee are well-known examples.

It's important to remember that some ISPs can fall under multiple categories. For instance, a social network like Facebook might also offer cloud storage services for user data.

2. The Current Landscape: Challenges and Inconsistencies

While Vietnam acknowledges the need for online copyright protection, the current legal framework regarding ISP responsibilities presents several challenges and inconsistencies. These issues hinder effective enforcement and create confusion for both ISPs and rights holders.

1. Discrepancy with EVFTA:

The Draft Law on ISPs, currently under revision, outlines regulations for ISP liability. However, these regulations appear to contradict Vietnam's commitments under the European Union-Vietnam Free Trade Agreement (EVFTA).
The EVFTA establishes "safe harbor" provisions, protecting ISPs from liability if they take reasonable steps to prevent copyright infringement. The Draft Law lacks such provisions, potentially hindering ISPs' efforts to comply with international standards.
This discrepancy creates uncertainty for ISPs operating in Vietnam, as they might face conflicting legal obligations.

2. Unclear "Intermediary" Definition:

The Draft Law lacks a clear definition of what constitutes an "intermediary." This ambiguity creates confusion about which entities fall under the regulations and their specific responsibilities.
For example, is a social media platform like Facebook considered an intermediary for all user-posted content, or only specifically for certain types of content?
This lack of clarity makes it difficult to enforce the regulations consistently and fairly across different types of online platforms.

3. Limited Scope of Enforcement:

Currently, only state agencies, like the Ministry of Culture, Sports and Tourism (MOCST), can initiate official takedown requests for infringing content. Rights holders have limited direct recourse.
This approach can be time-consuming and resource-intensive for rights holders, who need to involve state agencies for each takedown request, even for seemingly straightforward cases.
Additionally, it places the burden of identifying and reporting infringing content primarily on rights holders, which can be challenging for smaller creators or those unfamiliar with Vietnamese law.

4. Unclear Sanctions and Lack of Protection:

The Draft Law lacks clearly defined and comprehensive sanctions for non-compliant ISPs. The current framework primarily focuses on administrative warnings, which may not be sufficient deterrents for serious infringements.
Furthermore, there are no provisions to protect ISPs who take proactive measures against infringement but still face legal challenges from rights holders who believe the measures are insufficient.
This lack of clarity creates uncertainty for ISPs, discouraging them from investing in robust anti-infringement measures and potentially leading to inconsistent enforcement practices.

5. Potential for Overly Burdensome Regulations:

Some proposed regulations in the Draft Law, such as requiring ISPs to monitor all user activity for potential copyright infringement, could be overly burdensome and raise privacy concerns.
Striking a balance between effective copyright protection and respecting user privacy and freedom of expression is crucial.

3. Moving Forward: Towards a More Balanced Approach

Addressing the current challenges and inconsistencies in Vietnam's ISP responsibility framework requires a multi-pronged approach that ensures a balanced and effective online copyright environment. Here are some key steps towards a better system:

1. Incorporating Safe Harbor Provisions:

Aligning the Draft Law with EVFTA's "safe harbor" provisions would incentivize ISPs to actively combat infringement while protecting them from undue liability.
These provisions typically outline specific actions ISPs need to take to be eligible for protection, such as:
- Having a clear takedown policy and procedure.
- Responding promptly to takedown requests from rights holders.
- Implementing measures to prevent repeat infringement.
By offering this protection, ISPs will be encouraged to invest in effective anti-infringement measures and collaborate with rights holders more effectively.

2. Clarifying the "Intermediary" Definition:

Establishing a clear and specific definition for "intermediary" in the law will:
- Ensure consistent application of the regulations across different types of online platforms.
- Provide certainty for ISPs regarding their specific responsibilities and potential liabilities.
- This definition should consider the various roles and functionalities of different platforms, such as mere conduits (e.g., internet access providers), caching services, and content hosting platforms.

3. Empowering Rights Holders:

Providing direct takedown mechanisms for rights holders, alongside clear procedures and timelines for ISPs to respond, would streamline enforcement and protect rights more effectively.
This could involve online notification portals for takedown requests and clear guidelines on the required information and evidence.
Additionally, establishing graduated response systems could incentivize ISPs to act promptly on takedown requests without overburdening them with excessive administrative tasks.

4. Implementing Gradual Sanctions:

A graduated system of sanctions, starting with warnings and escalating to fines or service suspensions for repeated offenses, could encourage ISP compliance without overly burdening them.
This approach should consider the severity of the infringement, the ISP's previous record, and the measures taken to address the issue.
It's crucial to strike a balance between effective deterrence and allowing ISPs room to improve their anti-infringement practices.

5. Fostering Collaboration:

Encouraging collaboration between ISPs, rights holders, and government agencies can facilitate:
- Information sharing about emerging infringement trends and technologies.
- Development of efficient takedown procedures and best practices.
- Exploration of technology-based solutions for detecting and removing infringing content, such as automated filtering systems.
- Regular dialogue and capacity-building initiatives can foster understanding and cooperation among stakeholders.

6. Ensuring User Privacy and Freedom of Expression:

While combating infringement is essential, it's crucial to do so in a way that respects user privacy and freedom of expression.
Balancing these rights requires careful consideration and measures like:
- Implementing targeted and proportionate interventions instead of mass surveillance.
- Providing clear appeal mechanisms for users who believe their content has been wrongfully removed.
- Engaging in open discussions with civil society organizations and internet rights experts.

4. Responding to Takedown Notices:

In the world of online copyright protection, takedown notices play a crucial role in removing infringing content from the internet. As an ISP in Vietnam, understanding your responsibilities in responding to these notices is essential to complying with the law and protecting yourself from potential liabilities.

What is a Takedown Notice?

A takedown notice is a formal request from a copyright holder, typically their authorized representative, demanding the removal of allegedly infringing content hosted on your platform. This content could be anything from pirated music and movies to illegally copied articles and images.

Who can issue a Takedown Notice?

Only copyright holders or their authorized representatives can issue valid takedown notices. This means random individuals cannot demand content removal unless they hold the copyright to the material.

What does the Law say about Responding to Takedown Notices?

While the legal framework is evolving, currently, Decree 17/2023/ND-CP ("Decree 17") governs ISP responses to takedown notices. Here's a summary of key points:

Prompt Removal: Upon receiving a notice, you must remove the reported content "expeditiously." Timeframes aren't explicitly defined, but swift action is expected.
Notice Requirements: The notice must contain specific information, including the identity of the copyright holder, details of the allegedly infringing content, and proof of copyright ownership.
Two Types of Notices:
- Authorities: Notices from competent authorities (Ministry of Culture, Sports and Tourism or others) require immediate content removal without the user's knowledge.
- Rights Holders: Notices directly from rights holders require temporary removal and allow the reported user to submit a counter-response before a final decision is made.
Counter-Responses: Users can challenge takedown notices by submitting counter-responses. You must allow a reasonable timeframe for this and consider it before making a final decision.
Consequences of Non-Compliance: Failure to comply with takedown notices could lead to legal action and potential liability for damages caused by the infringing content.

General Best Practices:

Develop Clear Procedures: Establish a clear and transparent procedure for handling takedown notices, including how you receive, verify, and respond to them.
Maintain Records: Keep detailed records of all received takedown notices, responses, and counter-responses for legal purposes.
Seek Legal Advice: If you face ambiguity or complex situations, consult with legal professionals specializing in intellectual property law for guidance.

Additional Points to Consider:

Knowing is Key: While Decree 17 defines "knowledge" vaguely, taking takedown notices as evidence of your awareness of infringing content is crucial.
Protecting Yourself: Utilize safe harbor provisions as outlined in the IP Law and Decree 17 to shield yourself from liability if you act promptly and diligently upon receiving notices.
Collaborate with Users: Maintain open communication with users whose content is subject to takedown requests and consider their counter-responses fairly.
Promote Awareness: Educate users about copyright laws and their obligations to avoid posting infringing content on your platform.

By understanding these key points and adhering to best practices, Vietnamese ISPs can navigate the complexities of takedown notices effectively, fulfilling their legal responsibilities while ensuring a fair and balanced online environment for all stakeholders.

Remember: This information is for informational purposes only and does not constitute legal advice. Always consult with qualified legal professionals for specific guidance in handling takedown notices and copyright-related matters.

5. Conclusion

In Vietnam, navigating the responsibilities surrounding online copyright protection remains complex for ISPs. While the legal framework evolves, challenges around unclear definitions, limited rights holder empowerment, and unbalanced sanctions exist. Moving forward, incorporating safe harbor provisions, clarifying the "intermediary" definition, fostering collaboration, and ensuring balanced approaches are crucial for a sustainable and equitable online environment in Vietnam. By understanding their roles and adhering to best practices, ISPs can effectively respond to takedown notices, fulfilling legal obligations while safeguarding user rights and fostering a vibrant online space.

If you need further explanation on this subject, please don't hesitate to contact us through email at lienhe@luatminhkhue.vn or phone at: +84986 386 648. Lawyer To Thi Phuong Dzung