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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 77/2012/NĐ-CP
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Hanoi, October 05, 2012
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DECREE
AMENDING AND SUPPLEMENTING A NUMBER OF
ARTICLES OF THE GOVERNMENT'S DECREE NO. 90/2008/NĐ-CP
DATED AUGUST 13, 2008 ON ANTI-SPAMMING
Pursuant to the Law on Government organization dated
December 25, 2001;
Pursuant to the Law on information technology
dated June 29, 2006;
Pursuant to the Law on telecommunications dated November 23, 2009;;
Pursuant to the Law on Advertising dated June 21, 2012;
Pursuant to the Law on Handling administrative violations dated June
20, 2012;
At the proposal of the Minister of Information and Communications,
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Article 1. Amending and supplementing a number of
articles of the Government's Decree No. 90/2008/NĐ-CP dated August 13, 2008 on
anti-spamming as follows:
1. Amending Clause 14 Article 3, adding Clause 17, 18, and 19 to Article
3 as follows:
“14. Management code means a code issued by the Ministry of Information
and Communication to a provider of advertising email services or advertising
messaging services, or a provider of information messaging services, or a
provider of messaging services via the internet when approving their registration
dossier.”
“17. Identification name of a sender used in advertising messaging or information
messaging (hereinafter referred to as identification name) is a combination of
letters issued by the Ministry of Information and Communications to advertisers
or providers of information messaging services, and used to display or identify
the information about the sending sources of the messages about the service
provision.
18. Information messaging services are the services of using messages to
provide information or utilities for users.
19. Syntax of information messaging services (hereinafter referred to as
syntax) is a serial of non-case-sensitive letters, given by the provider of information
messaging services to refer to a specific information messaging service.”
2. Amending Point d, Point e Clause 1
Article 4, adding Point l, Point m to Clause 1 Article 4 as follows:
“d) Leading, cooperating, and controlling the prevention and handling of
spam of organizations and individuals;”
“e) Receiving applications from and issuing
management codes to providers of advertising email services, providers of
advertising messaging services, providers of information messaging services,
and providers of messaging services via the internet; receiving applications
from and issuing identification names to providers of advertising messaging
services and providers of information messaging services;”
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m) Promulgating provisions on charges for advertising messages.”
3. Amending Clause 6
Article 6, adding
Clause 8, 9 and 10 to Article 6 as follows:
"6. Exchanging and trading lists of electronic addresses without the
consents from the owners of such addresses.”
“8. Providing information messaging services inconsistently with the
request from the users.
9. Hiding the sender’s name or electronic address, or illegally using the
name or electronic address of another organization or individual when sending
messages and emails.
10. Charging the services without notifying their users.”
4. Amending Article 7 as follows:
“Article 7. Principles of sending advertising messages and emails
1. The advertising emails and advertising messages
may only be sent after obtaining an obvious prior consent from the receiver.
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3. The advertising emails and advertising messages may only be sent from
the electronic addresses and system prescribed by the Ministry of Information
and Communications.
4. When sending advertising emails and advertising messages,
the provider of advertising services must send their copies to the technical
system of the Ministry of Information and Communications.
5. It is prohibited to send more than 01 advertising email with the same
contents to an email address within 24 hours, unless otherwise agreed by the
receiver.
6. It is prohibited to send more than 01 advertising
message with the same contents to a telephone number within 24 hours, and only allowed to send such messages from
7:00 to 22:00 every day, unless otherwise agreed by the
receiver.
7. The advertisement contents must be conformable with law provisions on
advertising”.
5. Amending Clause 3 and Clause 5 Article 12 as follows:
“3. Right after receiving the refusal, the advertiser or the provider of
advertising services must immediately send a confirmation of the reception of
the refusal, and stop sending the refused kind of advertising emails to such
receiver.”
“5. Providers of advertising services or advertisers must not collect
surcharge to comply with the refusal to receive advertisements from their
receivers.”
6. Amending Point b Clause
3 Article 14, adding Point c to Clause 3 Article 4 as follows:
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c) If necessary, other special letters may be used in stead of “[“ and “]“
in the mark.”
7. Amending Point b Clause
1, Clause 3, and Clause 5 Article 16 as follows:
“b) It is required to instruct the receiver to refuse to accept
advertising messages that they registered to receive previously;”
“3. Right after receiving the refusal, the advertiser or the
provider of advertising services must immediately send a confirmation of the
reception of the refusal, and stop sending the refused kind of advertising
messages to such receiver.”
“5. Providers of advertising services or advertisers must
not collect surcharge to comply with the refusal to receive advertisements from
their receivers.”
8. Amending Clause 2 Article
17 as follows:
“2. When sending advertising emails, the advertiser must:
a) Comply with Article 9 of this Decree;
b) Send from a server of email services with national domains (.vn);
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d) Keep the advertising emails for at least 60 days;
dd) Take other professional measures at the requests of competent State
agencies.”
9. Amending Clause 4 Article 18, adding
Clause 4a to Article 18 as follows:
“4. Keeping the information about the
refusals, confirmations of the refusals, and the registration for receiving
advertising emails;
4a. Keeping the advertising emails for at least 60 days.”
10. 10. Adding Clause 4a to Article 19 as follows:
“4a. Providing free tools for preventing spam mails
on the email server for users.”
11. Amending Clause 3 Article 20 as follows:
“3. Providing information and preventing the sources of spam mails and
harmful software at the request of competent State agencies.”
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“2. When sending advertising messages,
the advertiser must:
a) Comply with Article 13 of this Decree;
b) Send advertising messages from the electronic addresses issued by a
telecommunication enterprise licensed to establish mobile telecommunications
networks;
c) Keep the information about the refusals, confirmations of the refusals,
and the registration for receiving advertising messages;
d) Keep the advertising messages for at least 60 days;
dd) Take other professional measures at the requests of
competent State agencies.”
13. Adding Article 22a as follows:
“Article 22a. Identification name
1. All organizations are entitled to register for and use identification
names to send advertising messages and provide information messaging services.
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a) Impartiality;
b) The sooner the entitled user;
c) The name must avoid ambiguity that cause confusion due to the equivocal
Vietnamese accents;
d) The name must be different from that of the Communist Party’s and the
State’s organizations.
3. The organization that register for a identification name is responsible
before law for the use purpose, the accuracy of the registration information,
and make sure that the registration and use of identification names do not
violate the lawful rights and interests of other organizations and individuals
before the date of registration.
4. Procedures for being issued with a identification name:
a) The organization must submit the registration dossier to the Ministry
of Information and Communications;
b) The registration dossier must provide sufficient information about the
organization that uses the identification name, including: the copy of the Enterprise registration certificate, the registration for the identification name;
c) The registering organization must pay fees for using the identification
name as prescribed by the Ministry of Finance;
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5. Identification names shall be revoked in the
following cases:
a) Using identification names to send spam messages or provide services
that violate law;
b) Failing to pay fees for using identification name;
c) At the request of competent State agencies.”
14. Amending Point a
Clause 1 Article 23, adding
Clause 3a, Clause 3b to Article 23; amending Clause 4 Article 23, adding Clause
4a to Article 23 as follows:
“a) The advertising messages must be sent from a technical system in Vietnam, and the technical system must satisfy the requirements from the Ministry of
Information and Communications.”
“3a. Being supported to provide services and being
responsible before law for all the services and contents provided on the
system. 3b. Providing the refusals from receivers to
advertisers if the list of electronic address used to send advertisements is
provided by advertisers.”
“4. Keeping the information about the registration
for receiving advertisements, refusals, and confirmations
of the refusals."
“4a. The advertising messages must be kept for at
least 60 days.”
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“Article 23a. Providers of information messaging
services
1. A provider of information messaging services must satisfy the following
conditions:
a) Having a website using a national domain “.vn”; the website must let it
users to access the information about the services, at least the service
introduction, service charges, instructions to use and to refuse the services;
b) Having a system allowing users to register for using the services, and
a system to receive the refusals to use the services from users;
c) Being issued with a management code by the Ministry of Information and
Communications.
2. Procedures for being issued with a management code:
a) The organization or individual must submit the registration dossier to
the Ministry of Information and Communications;
b) The registration dossier must provide sufficient information about the
organization that provides information messaging services, including: the copy
of the Enterprise registration certificate, the registration for the management
code, the list of services being provided;
c) The registering organizations and individuals must pay registration
fees as prescribed by the Ministry of Finance;
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3. The management code must be used in accordance with the provisions of the Ministry of Information and Communications.
4. The service provision shall be facilitated; and the provider must be
responsible before law for their services.
5. The service provision must be stop upon the client’s request.
6. The advertisements must comply with the following provisions:
a) Complying with provisions on sending advertising emails and advertising
messages;
b) When advertising on displaying media (the television, papers,
publications, the internet…), it is required to provide information about the
service charges and the compatible devices for legibly and comprehensibly using
the services in Vietnamese. The information about the service charge must be
displayed similarly to the syntax, at least at 2/3 of the size of the syntax; c)
It is required to specify the service charges right after the instruction when
advertising services on radio.
7. The information about the services on the website must be sufficiently
and clearly provided before providing the services, including: The service
name, corresponding syntax, service description, instruction to use,
corresponding service charge, instruction to cancel, supporting telephone,
commitment to use services.
8. When providing priced software or priced website, it is required to
ensure that such software and websites allow users to accept or refuse to use
services at corresponding charges.
9. It is prohibited to charge error messages, messages without services,
message with services but their syntax is different from that announced by the
enterprise, messages that cheat users.
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a) All refusal to use services, and all requests for using services;
b) The messages sent by users and by the enterprise within at least 01
year;
c) The complaints of users within at least 01 year.
11. Taking measures for
preventing spam mails and spam services that provide services that violate laws
at the requests of competent State agencies.
12. Making reports and statistics under the instruction from the Ministry
of Information and Communications.”
16. Amending Clause 2, 6, and 7 Article 24, adding Clause 2a, 2b, 2c, 2d, 5a, 5b, 5c, 5d, 5đ, 5e, 6a, 7a, 7b, and 7c to Article 24 as follows:
“2. Providing tools for receiving feedbacks about spam from users, for
accepting and refusing advertising messages as guided by the Ministry of
Information and Communications.”
“2a. Guiding subscribers to send notifications of
spam and reply to such notifications.” 2b. Triển khai hệ thống
ngăn chặn tin nhắn rác tối thiểu có khả năng ngăn chặn tin nhắn rác theo nguồn
gửi và từ khóa trong nội dung tin nhắn gửi.
2c. Taking measures for assessing the spamming on
their mobile network as guided by the Ministry of Information and
Communications.2d. Providing electronic addresses for
sending advertising messages and providing information messaging services as
prescribed by the Ministry of Information and Communications.
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5b. Within 01 month, the enterprises that have been
issued with the management codes must be connected to their system to provide information
messaging services and advertising messaging services.
5c. It is prohibited to discriminate between for providers of advertising messaging services and providers of information
messaging services being their affiliated units, and other providers of advertising messaging services and providers of information
messaging services.
5d. Providing services of sending and receiving messages,
services of sending and receiving messages using identification names for
providers of advertising messaging services and providers of information
messaging services of whom the management codes have been issued by the
Ministry of Information and Communications.
5đ. Returning the service charge upon the request of
providers of information messaging services; notifying the users of the refund.
5e. Preventing and handing the refund of charges for
the information messaging services without management codes.” “6. Limiting the
frequency of messaging from each source, preventing messages posing risk of
information insecurity as prescribed by the Ministry of Information and
Communications.
6a. Preventing and revoke the subscriber numbers used
to spread spam.”
7. Cooperating with other domestic and overseas providers of messaging
services in preventing spam.”
“7a. Complying with the requests made by the Ministry
of Information and Communications for preventing and handling spam, for
handling notifications and reporting spam. 7b. Providing
information serving the prevention of spam at the request of competent State
agencies.
7c. Preventing spam from fake sources before they are
sent to users.”
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“b) Taking measures for verifying the sources of messages via the
internet.”
18. Amending Point c
Clause 5 Article 34 as follows:
"c. Exchanging and trading lists
of electronic addresses without the consents from the
owners of such electronic addresses.”
19. Amending the title of Article 36, and adding Point d and dd to Clause 3 Article 36 as follows:
“Article 36. Violations of provisions on refusing functions”
“d) Failing to take measures for verifying the sources of messages via the internet;
dd) Providing information messaging services without
a system that allow users to register for and refusing to use the
services."
20. Amending Point a, Clause
2, adding Point c to Clause 2, amending
Point dd Clause 3, and adding Point i to Clause 3 of Article 37 as follows:
“a) Failing to keep the advertising emails or messages for at least 60
days;”
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“dd) Failing to promptly sending the confirmation of receiving the refusal
from the receivers of advertising messages or emails;”
“i) Failing to provide free tools for preventing spam mails on the email
server for users.”
21. Amending Point d
Clause 2, Point a and b Clause 3, Point a and b Clause 4; adding Point
d and dd to Clause 4 Article 38 as follows:
“d). Failing to stop sending the
kinds of advertising emails and advertising messages, or failing to stop
providing information messaging services right after receiving the refusals
from users.”
“a) Sending more than 01 advertising email with the same
contents to an email address within 24 hours without reaching an
agreement with the receiver;
b) Sending more than 01 advertising message with the same contents to a subscriber
number within 24 hours, or sending advertising messages outside the period from
7:00 to 22:00 every day, without reaching an agreement with the receiver;”
“a) Sending advertising emails or advertising
messages without the consent from the receiver;
b) Sending advertising emails or advertising messages from an electronic
addresses or technical not in conformity with provisions of the Ministry of
Information and Communications;”
“d) Sending advertising emails or
advertising messages, without sending their copies to the
technical system of the Ministry of Information and Communications;
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22. Amending Point b
Clause 1, adding Point c, d and dd to Clause
1, amending Point a Clause 2,
adding Point d, d, e,
g, h, i, k, l, m, n, and o to Clause 2,
adding Point c, d, dd,
e, g, h, and i to Clause
3 Article 39 as
follows:
“b) Providing advertising email services, messaging services via the
internet, and information messaging services without a website using the Vietnam’s national domain “.vn”.”
“c) Failing to provide sufficiently and clearly the information about the
services on the website before providing the services, including: The service
name, corresponding syntax, service description, instruction to use, corresponding
service charge, instruction to cancel, supporting telephone, commitment to use
services;
d) Using a identification name that violates the lawful rights and
interests secured by other organizations and individuals before the date of
registration;
dd) Using a identification name identical
with that of the Communist Party’s and the State’s organizations.”
“a) Providing advertising email services, advertising messaging services,
or information messaging services without a management code;”
“d) Using a identification name without being issued with a certificate of
identification name;
d) Advertising information messaging services on newspapers, audio news,
video news, electronic news, websites, the internet, via messages and emails,
without information about prices and charges;
e) Advertising information messaging services on newspapers, video news,
electronic news, websites, and the internet, but the charges are not displayed
together with the syntax, or the information about the prices and charges is
smaller than 2/3 of the syntax;
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h) Charging error messages, messages without services, message with
services but their syntax is different from that announced by the enterprise,
messages that cheat users.
i) Failing to provide or to completely, correctly, or promptly provide information
on the website of a telecommunication enterprise licensed to establish a mobile
telecommunications network about the providers of information messaging
services;
k) Failing to guide subscribers to report spam, and failing to respond to
such notifications;
l) The enterprises that have been issued with the management codes are
allowed to connected to their system to provide information messaging services
and advertising messaging services after one month;
m) Failing to keep, or incompletely keeping the data as prescribed;
n) The period of keeping data is shorter than prescribed;
o) The provider of advertising services or provider of advertising
messaging services does not notify the refusals from the refusal to the
advertiser.”
“c) Providing advertising messaging services without using the numbers for
sending advertising messages issued by a telecommunication enterprise licensed
to establish mobile telecommunications networks;”
“d) Failing to provide tools for receiving feedbacks about spam from
users, for accepting and refusing advertising messages as guided by the
Ministry of Information and Communications;
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b) Failing to provide electronic addresses for sending advertising
messages and providing information messaging services as prescribed by the
Ministry of Information and Communications;
g) Failing to provide services of sending and receiving messages using
identification names for the providers of advertising messaging services or
providers of information messaging services that have been issued with
management codes by the Ministry of Information and Communications;
l) Not allowing the enterprises that have been issued with management
codes to connect to their system to provide information messaging services or
advertising messaging services;
i) Discriminating the providers of advertising messaging services and
providers of information messaging services;”
23. Adding Clause 4 to
Article 10 as follows:
“4. Fines of from 60,000,000 VND to 80,000,000 VND
for:
a) Failing to return the service charge upon the request of providers of information
messaging services, or failing to notifying the users of the refund.
b) Providing priced software or priced website, without allowing users to
accept or refuse to use services at corresponding charges.”
24. Adding Clause 3 to Article 42 as follows:
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25. Amending Clause 2, Clause 4, Clause 5
Article 43, adding Clause 6 to Article 43 as follows:
“2. Revoking management codes and identification names, applicable to the
acts of violations specified in Article 35; Point c Clause 3, Point c Clause 4 Article 38; Point d, đ Clause 1 Article 39.”
“4. Compelling to return the
money that has been appropriated or improperly collected when committing
administrative violations, applicable to the acts of violations
specified in Point h Clause 2 Article 39; Point a and b Clause 4 Article
40.
5. Temporarily suspending for 01 – 03 months, or permanently forbidding
the advertising messaging, emailing, or information messaging services,
applicable to the acts of violations prescribed in Point a and b Clause 1,
Clause 2, and Clause 3 Article 36; Point d Clause 2, Clause 3, and Clause 4
Article 38; Point a and b Clause 1, Point a, b, c, d, and h Clause 2, Point a,
b, and e Clause 3 Article 39; Point a, b, and dd Clause 4 Article 40; and
Article 41.”
“6. Confiscating the money collected by committing
the violations prescribed in Point c Clause 5 Article 34; and Point I Clause 3
Article 37.”
26. The phrase “provider of messaging services” in Point a Clause 1
Article 23, Clause 7 Article 24, Clause 2 Article 26, Point d Clause 3 Article
37, and Point c Clause 3 Article 39, is replaced with “telecommunication
enterprise licensed to establish mobile telecommunications networks”.
Article 2. Effects and Implementation responsibilities
1. This Decree takes effect on January 01, 2013.
2. The Ministries, Heads of ministerial-level agencies, Heads of
Governmental agencies, the Presidents of People’s Committees of
central-affiliated cities and provinces, relevant organizations and individuals
are responsible for implementing this Decree./.
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FOR THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung