Research objects The research objects of the thesis are the theoretical and practical issues of law on online commercial advertising services on the internet, the current practice of th
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
NGUYEN THI DAN PHUONG
LAWS ON ONLINE COMMERCIAL ADVERTISING SERVICES
ON THE INTERNET IN VIETNAM NOWADAYS
Major: Economic Law Code: 9 38 01 07
SUMMARY OF DISSERTATION IN LAWS
HANOI - 2020
Trang 2The dissertation is completed at:
GRADUATE ACADEMY OF SOCIAL SCIENCES, VIETNAM ACADEMY OF SOCIAL SCIENCES
Suppervisor: 1 PhD DANG VU HUAN
2 PhD HO NGOC HIEN
Reviewer 1: Prof PhD Nguyen Thi Mo
Reviewer 2: Assoc Prof PhD Duong Dang Hue
Reviewer 3: Assoc Prof PhD Bui Thi Huyen
The dissertation will be defended in front of the level Dissertation Evaluation Committee at Graduate Academy
Academy-of Social Sciences, Vietnam Academy Academy-of Social Sciences
At ……… o’clock ……… , date …… month …… 2020
The dissertation can be found at the libraries:
- National Library
- Library of Graduate Academy of Social Sciences
Trang 3FOREWORD
1 The urgency of the thesis
Today, in the context of increasingly powerful technology, the internet access for people also becomes increasingly easier, the connection between people and global connectivity are also deeper The attractiveness of the great benefits of online advertising makes businesses more and more pouring money into online advertising, and there are many more individuals, legal entities starting up and operating in this field Online advertising also raises risks for both participating individuals and state management activities such as not fulfilling financial obligations from related parties to the state, the economy may be unbalanced, advertising products may affect social morality…Currently, online commercial advertising services are still being regulated through the Law on Advertising 2012, the Law on Commercial
2005, the Law on E-transactions 2005 and other implementing documents However, these laws basically apply to traditional advertising activities, but when applied to online advertising activities with distinctive features compared to traditional advertising, there are still many difficulties, and it is also difficult to manage the risks that online advertising may encounter
From the above reasons, the PhD student has chosen the content “Laws on
online commercial advertising services on the Internet in Vietnam nowadays” to be the tittle of the thesis
2 Research purposes and tasks
- Analyzing and assessing the current legal status of online commercial advertising services on the internet in Vietnam and the implementation process to find out the advantages, limitations and causes
Trang 4- Proposing directions and solutions to complete the law and improve the efficiency of law enforcement on online commercial advertising services
on the internet in Vietnam in the coming time
3 Research objects and scope
3.1 Research objects
The research objects of the thesis are the theoretical and practical issues
of law on online commercial advertising services on the internet, the current practice of the legal system and the practice of law enforcement on online commercial advertising services on the internet in Vietnam nowadays
3.2 Research scope
The thesis research online commercial advertising services on the internet under the perspective of an advertising activity, a trade promotion activity performed by entities participating in the stages of the process and legal issues arise in the implementation of these activities
4 New scientific contributions of the thesis
- The research of the thesis contributes to systematizing and clarifying the theoretical basis for online commercial advertisement services and the law on online commercial advertising services in Vietnam nowadays
- The thesis has synthesized the current legal regulations and the implementation of the regulations on online commercial advertising services
on the contents which have been studied, pointing out the advantages as well
as the limitations of the legal system on online commercial advertisement services and the reasons for such limitations
- The thesis proposes a number of solutions to improve the legal system of online commercial advertisement services as well as improve the effectiveness of law enforcement for online commercial advertising services
in the coming time
5 The theoretical and practical significance of the thesis
In terms of theoretical, up to the present time, this is the first
research on the law on online commercial advertising services on the internet
at the doctoral thesis level
In terms of practical, the solutions of the thesis are proposed to
protect the rights and interests of the entities in online commercial advertising services but also help the state to have a better management mechanism for these activities to create a healthy competitive environment and can also encourage the development of this activity according to the trend of international trade integration in the future
Trang 56 Research methods
In addition to the general scientific methodology, the thesis also uses more specific research methods such as information collection methods, synthesis methods, analytical methods, descriptive methods, historical methods… to approach and clarify the theoretical and practical issues for the current law on online commercial advertisement services in Vietnam
7 The structure of the thesis
In addition to the foreword, conclusion and list of references, research content layout of the thesis is divided into four chapters, specifically
as follows:
Chapter 1: Overview of research situation and research theoretical basis Chapter 2: Theoretical issues about the law of online commercial
advertising services on the internet
Chapter 3: Current situation of legal regulations and law
enforcement on online commercial advertising services on the internet in Vietnam nowadays
Chapter 4: Directions and solutions to complete the law and
enhance the efficiency of legal enforcement on online commercial advertising services in Vietnam
Chapter 1 OVERVIEW OF RESEARCH SITUATION
AND RESEARCH THEORETICAL BASIS 1.1 Overview of research situation
1.1.1 Group of legal research works related to online commercial advertising services on the internet
1.1.1.1 Theoretical research works related to online commercial advertising services on the internet
* Theoretical studies of commercial advertising
Nguyen Thi Tam in the thesis “Completing the law on commercial
advertising” introduces the concept of “commercial advertising is the activity
of subjects through the means of advertising to introduce goods, services, doing business to consumers for profit purposes” [55, p.20] In his research
on competitive advertising - Thesis “Adjusting advertising activities in the
framework of competition law in Vietnam”, Doan Tu Tich Phuoc said that
advertising is understood and limited to commercial advertising, that is, a commercial act performed by a trader to introduce its business to a customer
Trang 6Similar to Nguyen Thi Tam's research in the thesis “Completing the law on
commercial advertising”, Doan Tu Tich Phuoc also classifies advertising
based on three criteria: advertising content, advertising media and methods
of impacting the object [54]
* Theoretical studies of online advertising
Besides, the author Bui Thi Bach Hai, in the thesis “Legal
responsibilities of online commercial advertisement publishers according to current Vietnamese law”, introduced the concept: “Online commercial advertising is the efforts of business or service entities to influence the buying habits and behavior of consumers or customers by providing sales messages in a convincing way about products or services of the seller in order to obtain profits in the most effective way through electronic means with internet connection” [50, pp.13,14]
* Theoretical studies of related concepts – “internet marketing”
Pham Hong Hoa in the thesis “The process of applying internet
marketing in small and medium enterprises in Vietnam” has shown that there
are many different interpretations of online advertising (internet marketing) with a fairly broad meaning like e-marketing, electronic marketing, to more narrow meanings such as email marketing [51, p.23]
The authors Dave Chaffey, Fiona Ellis-Chadwick, Kevin Johnston,
Richard Mayer in the work “Internet Marketing: Strategy, Implementation
and Practice” have defined: “Internet marketing or marketing based on the internet is the use of the internet and related digital technologies to achieve marketing objectives and to support modern marketing concepts” [104, p.8]
* Theoretical studies of related concepts – “social network advertising”
Regarding online advertising using social networking tools - one of
the types of online advertising, there was a master thesis “Laws on sales and
advertising on social networks in Vietnam” by the author Nguyen Phan Anh
[43, p.18]
* Theoretical studies of other types of advertising
Nguyen Thi Thuy Dung in her thesis “The law on television
advertising services in Vietnam” compared television advertising services
with internet advertising services [45, p.21]
1.1.1.2 Research works related to the law on online commercial advertising services
* Studies of the law on commercial advertising services in general
Trang 7In the thesis “Completing the law on commercial advertising”,
Nguyen Thi Tam noticed that due to the specific characteristics of commercial advertising activities, there are many different legal documents governing the relationships arising in this area such as Law on Commercial, Law on Advertising, Law on Competition, Law on Pharmacy, Law on Intellectual Property, Law on Protection of Consumer Rights, Press Law…
and identified “Law on Commercial 2005 is considered as specialized legal
documents governing commercial advertising” [55, pp.36,37]
* Studies of the law of online commercial advertising services
Nguyen Thi Thu Huong, in her thesis “State management of online
advertising services in Vietnam”, has synthesized and evaluated the contents
of the state management on online advertising and advertising [52, 29]
pp.27-In his master thesis “Laws on sales and advertising on social
networks in Vietnam”, author Nguyen Phan Anh has also summarized the
legal source for advertising activities on social networks [43]
In “The guide to advertising and sales promotion law in the UK”,
Sallie Spilsbury looks at how the law applies to internet advertising and promotion now and what developments are we can be expected in the future [113, pp.163-195]
In the article “The development of Vietnamese law on state
management of commercial advertising”, Nguyen Ngoc Anh gave an
overview of the development of legal provisions on advertising [59, p.10] In the legal institutions of online commercial advertising services, Thesis
“Legal responsibilities of online commercial advertisement publishers
according to current Vietnamese law” by Bui Thi Bach Hai emphasized
aspect for the entities group is called the advertisement publishers [50, p.34]
Regarding the authority to manage commercial advertising activities,
Vu Thi Hoa Nhu in the article “Competence to manage commercial
advertising activities according to the law of China and some Southeast Asian countries - Lessons for Vietnam” pointed out that the authority to
administer advertising activities in general not only belongs to the host agency - the Ministry of Culture, Sports and Tourism, but also the important participation of the Ministry of Information and Communication, as well as the Ministry of Industry and Trade besides other ministries [84, p.68]
Along with comments on the legal document system, Nguyen Ngoc
Ha and Vo Sy Manh in the article “Laws on commercial advertising of the
Trang 8United States and experiences for Vietnam” also stated “The biggest limitation that exists in the legal situation on advertising is the overlap, repetition, inconsistency of many legal documents, issued by many different agencies” [75, p.93]
1.1.2 Group of research works on legal practice related to online commercial advertising services on the internet
1.1.2.1 Studies on the current legal status of online commercial advertising services on the internet
The thesis “State management of online advertising services in Vietnam” by Nguyen Thi Thu Huong (2014) reviewed the provisions of the Law on Advertising 2012 as well as the Ordinance on Advertising 2001, but the author also said that there are no specific legal documents governing online advertising [52, pp.57-59]
In her thesis “Legal responsibilities of online commercial
advertisement publishers according to current Vietnamese law”, Bui Thi
Bach Hai pointed out the legal provisions on liability for “online commercial
advertisement publishers” according to Vietnamese law [50]
Tran Quynh Anh in the article “The current situation of state
management on commercial advertising with the aim of limiting unfair competition practices and protecting consumers” also agrees with the
situation that current legal regulations on state management authority for commercial advertising activities have created a lack of uniformity in state management besides the issue of not specifically delineating authority and coordination mechanism among state agencies [61, pp.4-5]
Especially the article “Protection of personal information in
e-commerce according to Vietnamese law”, author Dinh Thi Lan Anh has
raised a number of theoretical issues for the protection of personal
information of consumers such as deep consideration of concepts related to
personal information, legal liability of the entities involved in acts of infringing upon the personal information of consumers [57, pp.29-33]
1.1.2.2 Studies on law enforcement situation related to online commercial advertising services on internet
Nguyen Thi Tam has shown profound research in the thesis
“Completing the law on commercial advertising” (2016), fully synthesizing
the provisions of the law on commercial advertising, making comments that although has adjusted to practical needs basically, but the current commercial advertising law still has some shortcomings [55, p.121] Author Nguyen
Trang 9Phan Anh in his master thesis “The law on sales and advertising on social
networks in Vietnam”, has pointed out many shortcomings in the
implementation of regulations on advertising on social networks [43]
Since the Internet has become ubiquitous, concerns have been raised about the best way to protect consumers from new forms of advertising,
Martin, A.R & Sarkar, R raised this issue in the article “Developments in
advertising and consumer protection in cyberspace” [110, p.295]
In the article “Inadequacies in commercial advertising on the
Internet and recommendations for improvement”, Vo Thi Thanh Linh has
summarized many shortcomings [80, pp.67-72]
Nguyen Nhu Chinh, in his article “Regulations on inspection,
supervision and handling of violations in commercial advertising activities - Current situation and direction of improvement”, stated “The authority to manage, inspect, monitor and sanction violations in the current commercial advertising activities based on the division of management fields among ministries” [67, p.4]
In addition, regarding internet users, consumers in e-commerce,
there are also a number of studies mentioned “Law on consumer protection
in commerce” by Le Van Thiep gives us a concept of consumers in
commerce and clearly specifies the principles in protecting consumers in commerce [91, p.33] This study only mentions the general situation of consumers in e-commerce Meanwhile, Doan Quynh Thuong, while talking about the basic disputes in e-commerce in the article “About some disputes
e-in e-commerce”, mentioned the situation of disputes related to the protection
of consumers' personal data in e-commerce [93, pp.41-42]
Steven C Bennett in the article “Regulating Online Behavioral
Advertising” offers a number of perspectives on adjusting ads based on
online behavior, possibly providing in-depth regulations with the primary goal of ensuring consumer privacy is protected, preventing misuse of consumer information, or a system of public and private litigation aimed at addressing redundancies in online behavioral advertising practices, which may better address these central concerns while maintaining the economic viability of advertising based on online behavior [115, p.943]
1.1.3 Proposals and recommendations in the research works related to the law on online commercial advertising services on the internet
Nguyen Thi Tam in the thesis “Completing the law on commercial
advertising” has given a number of solutions such as: Rebuilding the concept
Trang 10of commercial advertising and solving legal conflicts in the field of commercial advertising; Solutions to perfect the law on subjects participating
in commercial advertising legal relations… [55]
In his master thesis “Laws on sales and advertising on social
networks in Vietnam”, author Nguyen Phan Anh has determined that the
completion of laws governing social media advertising is necessary to
promote Vietnam's international integration [43, pp.76-82]
Luận văn thạc sĩ “Pháp luật về hoạt động bán hàng và quảng cáo
trên mạng xã hội tại Việt Nam”, tác giả Nguyễn Phan Anh xác định được
việc hoàn thiện pháp luật điều chỉnh hoạt động quảng cáo trên mạng xã hội cần thiết để đẩy mạnh hội nhập quốc tế của Việt Nam [43, tr.76-82]
Nguyen Thi Thu Huong, in her thesis “State management of online
advertising services in Vietnam”, Vu Thi Hoa Nhu in the article
“Competence to manage commercial advertising activities according to the
law of China and some Southeast Asian countries - Lessons for Vietnam”, Vo
Thi Khanh Linh in the article “Competence to manage online commercial
advertising activities in the UK, Singapore and proposing to improve the law
on online commerce in Vietnam”, Le Ngoc Anh in the article “Competence to
manage commercial advertising activities according to the UK and the US
laws and experiences for Vietnam” studied the experiences of some countries
around the world to draw lessons for state management in Vietnam
In the article “To Track or Do Not Track: Advancing Transparency
and Individual Control in Online Behavioral Advertising”, Omer Tene &
Jules Polonetsky stated that the legal framework for both online and offline privacy is changing but nowhere is this more obvious than in the online environment [111, pp.307-308]
Alexander Nill & Robert J Aalberts in “Legal and Ethical
Challenges of Online Behavioral Targeting in Advertising” argues that
online behavioral targeting, despite its many benefits for both shoppers and advertisers, but in reality, there are possibilities of technology that would violate consumer privacy at a dangerous and unprecedented level [99]
1.1.4 Overall assessment of research situation
In general, there are not many scientific research works on online commercial advertising services
1.1.4.1 Issues that the thesis will inherit
First, in terms of theoretical
Trang 11- The studies have synthesized general commercial advertising theory, giving some suggestions for researching the concept of online commercial advertising services
- The studies have compiled the source of the law applicable to commercial advertising in general and the content of the law
Second, in terms of practical
- The research works approaching under the perspective of statutory law, this approach helps to provide a foundation and solid basis for building the proposed directions and solutions to improve the efficiency of law application
- In addition to the jurisprudence studies, there are some studies approaching from a state management perspective or a marketing perspective
- In terms of the direction to improve the legal system, studies have focused on a number of orientations
1.1.4.2 Issues that have not been mentioned
- The concept and characteristics of online commercial advertising services have not been emphasized, clarified, and separated from other traditional commercial advertising services
- There have been no studies to clarify the concept and characteristics of the law on online commercial advertising services on the internet
- The reality of legal regulations and law enforcement practices governing online commercial advertising services on the internet has not yet been synthesized, reviewed, and assessed on the advantages and disadvantages
1.1.5 The issues will continue to be researched in the content of the thesis
Firstly, theoretically, on the basis of the multi-disciplinary and
interdisciplinary approach, the thesis will continue to inherit and analyze more deeply
Secondly, the thesis continues to evaluate the current state of law
provisions on online commercial advertising services
Thirdly, from the above theoretical and practical research, some
orientations and requirements for the completion of legal regulations are proposed; propose some more solutions to improve law enforcement efficiency for online commercial advertising activities
Trang 121.2 Theoretical basis and research method
1.2.1 Theoretical basis
To do research, the thesis is expected to use the following research theories: Theory of service trade; Theory of business freedom; Theory of consumer protection; Theory of internet user's privacy, right to personal privacy, confidentiality of information
1.2.2 Research question
To achieve the research goals, the author poses the following research questions:
First, in terms of theoretical
(i) What kind of service is the online advertising service on the internet, what are the differences compared to the traditional advertising service? What risks can arise in online advertising services on the internet?
(ii) How is the law on online advertising services on the internet understood and what basic content does it include?
Secondly, on the current situation of the law on online advertising services on the internet
(i) What is the current situation of legal regulations and practice of implementing the law on online commercial advertising services on the Internet in Vietnam nowadays, what are the advantages and disadvantages?
(ii) When applying current laws, is there any risk in online commercial advertising services on the Internet in Vietnam nowadays?
Thirdly, on orientations and solutions to complete the law on online commercial advertising services on the Internet
(i) What are the requirements for completing the law on online commercial advertising services on the Internet in Vietnam nowadays?
(ii) What are specific solutions to improve the enforcement of the law on online commercial advertising services on the Internet in Vietnam nowadays?
1.2.3 Research hypothesis
To answer the research questions, the thesis offers the following research hypotheses:
- Theoretical basis of law on online commercial advertising services
on the Internet have not been fully and comprehensively studied
- The current legal provisions on online commercial advertising services on the Internet in Vietnam still have shortcomings that create
Trang 13restrictions affecting the entities participating in commercial advertising activities as well as related entities in society
- The implementation of the law on online commercial advertising services on the Internet still faces many problems and limitations
- In order to create conditions for entities to develop online commercial advertising services on the Internet, it is necessary to renew and improve strongly the legal system as well as the organization and implementation of the law
CONCLUSION OF CHAPTER 1
After doing an overview of the research situation and identifying the research theoretical basis for the thesis topic, it is possible to draw the following conclusions:
1 The research works also give some orientations for the thesis
research
2 The research works have not yet gone into the type of online
commercial advertising service on the internet, so the concept and characteristics of this service have not been clarified; the practice of legal regulations and the enforcement of the law on online commercial advertising services on the internet also have not been considered and evaluated These are the basic issues that the thesis will continue to deploy
3 To do research on the topic, the thesis uses a number of research
theories such as: The theory of service trade, the theory of advertising communication…
Chapter 2 THEORETICAL ISSUES ABOUT THE LAW OF ONLINE COMMERCIAL ADVERTISING SERVICES ON THE INTERNET 2.1 Theoretical overview of online commercial advertising services on the internet
2.1.1 Concept of online commercial advertising service on the internet
2.1.1.1 Commercial advertising services
Advertising was formed very early with the development of commercial activities, it acted as an intermediary activity connecting sellers and buyers