Surveying the legal landscape of net neutrality in Vietnam

The idea that ISPs should treat all content flowing through their cables and cell towers equally, or net neutrality, has been hotly debated globally for nearly two decades. According to this principle, they have to provide access to all sites, content, and applications at the same speed, under the same conditions, without blocking or giving preference to any content.

Tran Manh Hung - Partner at BMVN, a member of Baker McKenzie

Without net neutrality, an ISP can decide what information users are exposed to. For example, if a handful of large telecommunications companies dominate the broadband market, it will put an enormous amount of power into their hands to suppress particular views or limit online speech to those who can pay the most. However, it should be noted that this “neutrality” is not absolute, as there are always restrictions on the lawfulness of the content to be accessed and disseminated in every country.

Countries have taken different approaches to this principle in regulating the activities of ISPs. While Brazil, Chile, Slovenia, and the Netherlands protect net neutrality through national legislation, countries like the US have opted for the contrary.

In particular, the 2017 rollback on the Open Internet Order has allowed ISPs to exercise the banning, blocking, throttling, or paid prioritisation of specific websites or applications. Similarly, China’s approach to internet policy also does not account for net neutrality as the government uses ISPs to inspect and regulate the content available to their citizens.

In Vietnam, it should be noted that under Decree No.72/2013/ND-CP on management, provision, and use of internet services and online information, an ISP is regarded as a telecommunication enterprise. As such, provisions concerning telecommunication enterprises will also apply to them.

The term net neutrality and its definition are not specifically provided for in any legislation, and there is no clear or specific provision in Vietnamese law that requires an ISP to treat all contents transferred by its network equally and not to hinder or slow down applications and services on the internet. However, provisions of laws on telecommunications do provide certain provisions prohibiting the illegal obstruction of information and internet services.

Specifically, Article 12.6 of the Law on Telecommunications 2009 prescribes that ISPs shall not illegally obstruct, disrupt, or undermine the lawful provision and use of telecommunications services.

Moreover, the Law on Cybersecurity also prohibits the illegal effect or obstruction of the users’ accessibility to information systems. There are also provisions on emergency information that must be prioritised concerning service of national defence and security combat of natural disasters, search and rescue, salvage, fires, other disasters, and other cases of emergency.

Even though the access to and use of online services by users may seem to not be obstructed by ISPs, it should be noted that this only applies to information and services that are lawful. Contents that violate Vietnam’s national security, interests or sovereignty, and public order and interests are strictly prohibited, and ISPs are able to block or restrict access to such content at their discretion or upon a request from state agencies.

However, one major legal loophole remains – there are no restrictions on paid prioritisation and other forms of favourable treatment by ISPs. Thus, while they cannot ban, block, or throttle access to websites, they can provide prioritisation such as faster connection speed to certain websites and applications.

Vietnamese competition law, in this respect, also does not prohibit such acts. In addition, sanctions against acts of illegal obstruction by ISPs are yet to be enacted, leaving unanswered questions as to how the provisions on ensuring equal access by users may be enforced.

This loophole also gives rise to controversial zero-rating services. Offered mainly to customers by mobile telecommunications providers, these services allow unlimited (free) use of specific applications or services, without this use counting towards a subscriber’s data threshold. In some cases, users are allowed access even without a data plan.

It enables ISPs to gain an advantage in the promotion of in-house services over competing independent companies, especially in data-heavy markets like video streaming. A service provider offering unlimited access to their service will naturally seem more favourable to consumers than one where usage is limited.

As many new internet and content services target primarily mobile usage, and further adoption of internet connectivity globally (including broadband in rural areas of developed countries) relies heavily on mobile, zero-rating has been regarded as a threat to net neutrality. As for the current framework, while some mobile telecoms providers have been offering data plans with unlimited use of certain applications such as Zalo and Sky, Vietnam has yet to mention this in any legislation.

While the concept of net neutrality and zero-rating under Vietnamese law has yet to be stipulated, market practices have demonstrated that maybe it is high time the Vietnamese government should delve into these issues as the internet is playing an increasingly bigger role in the world. That said, with the strong incentives by the Vietnamese government to regulate the field of technology in recent times, it may be possible that net neutrality and zero-rating will be touched on in future legislation.