|Vietnam’s E-transaction Law: Some Implications from International Experience. Photo source: freepik.com |
One of the key objectives of the revision is to create a healthy and safe regulatory environment that promotes electronic transactions.
As the legislators may be interested in looking into international frameworks and practices on similar subjects, this report aims to share some findings on how the laws for the e-transactions of other jurisdictions such as the EU, Commonwealth, Singapore, and Indonesia stipulate governing scope, intermediaries, and consumer protection.
Overall, it is consistent across jurisdictions that e-transaction laws focus on regulating electronic elements of transactions such as e-signatures, contracts, documents, and authentication services, rather than the transactions themselves. For this reason, many countries exclude the transactions that require a notarisation from the governing scope of their e-transaction laws.
For instance, the Commonwealth, Singapore, and Oman exclude the creation or execution of wills. Oman also excludes transactions related to Personal Status Law such as marriage and divorce. Another common exclusion is real estate as suggested in the laws of the Commonwealth, Singapore, and Indonesia.
Vietnam’s current Law on E-transactions follows international practices and excludes the granting of certificates for land use rights, house ownership rights and immovable properties, inheritance documents, marriage certificates, divorce decisions, and death certificates, among others.
Indeed, e-transactions cannot be sufficient to recognise and undertake the unique and complicated requirements of a notarisation when it comes to real estate and personal identity transactions.
The exclusion of certain civil, commercial, and administrative transactions – which are required to be in writing or notarised – from its governing scope will ensure that the scope of the E-transaction Law is not too broad and complex, while also ensuring proper legal execution and deterring fraud. If these special transactions are not excluded, the law will need to include specific safeguard measures to prevent fraudulence.
Rights and obligations of intermediaries
Most of the jurisdictions in this study define an intermediary as an agency, organisation, or individual representing another agency, organisation, or individual in sending, receiving, or storing a data message or providing other services relating to such a data message.
They, however, have a different approach to regulating the liabilities of intermediaries under their e-transaction laws. Specifically, the EU, Oman, and Singapore clearly state that intermediaries are exempted from liability for the consumer's information transmitted or stored on their platforms.
The EU regulates intermediary digital services under a separate law titled the Digital Services Act (DSA), which imposes further obligations to act against illegal content and provide information upon receipt of specific orders from the authorities with an aim to prevent the spread of unlawful and harmful information and activities to ensure a safe online environment.
The DSA also includes specific and detailed provisions on which type of intermediaries are exempt from the liabilities related to the consumer’s information, which content they should report, and the procedures for both intermediaries and authorities to manage any harmful content.
Other than the EU, most of the studied jurisdictions do not include further obligations for intermediary service providers in their e-transaction laws.
The international practice suggests that Vietnam’s regulators should take into consideration whether it should include provisions on the obligations of intermediaries in their revised e-transaction law.
If they choose to include such provisions to ensure a safe online environment, it is important that the provisions are sufficiently detailed, feasible, and enforceable, especially regarding the process of handling illegal or harmful content on the Internet by both the service providers and the relevant authorities.
Most of the jurisdictions in this study do not include specific provisions on consumer protection in their e-transaction laws. Instead, the subject of consumer protection in electronic transactions is generally covered in either a separate regulation on consumer protection or e-commerce law.
South Korea’s Framework Act on Electronic Documents and Transactions includes a chapter on Ensuring the Security of Electronic Transactions and the Protection of Consumers. This chapter focuses on the government’s responsibilities to formulate and implement policies on consumer protection, the prevention of losses, and remedies for consumers.
The Chapter also refers to a relevant statute, namely the E-commerce Consumer Protection Act (2002), that protects the rights and interests of consumers by ensuring fair trade of goods and services in electronic commerce transactions.
Cambodia does not have a legal framework for electronic transactions but does have an E-commerce Law, which contains legal provisions on consumer protection on e-commerce platforms, including matters relating to adequate information requirements, scams, malicious codes, and data protection.
India protects their consumers in the digital marketplace under the Consumer Protection Act (2019), specifically the Consumer Protection (E-commerce) Rules (2020).
International practices suggest that e-transaction laws should focus on the validity and authentication of electronic elements such as e-signatures, e-contracts, and e-documents. By following this approach, the current draft law with the updated provisions on the validity and authentication of electronic elements would strengthen consumer protection in e-transactions to a certain extent.
On the other hand, as Vietnam is revising the law on consumer protection, its legislators may consider including provisions on consumer protection in the digital marketplace and e-commerce activities in the revised law. Alternatively, the legislators may consider endorsing a separate statute for the protection of consumers in e-transactions.
*My Vuong, MPP candidate, Harris School of Public Policy, University of Chicago