[Vietnam] National security to control cyberspace

Since 1975, the Communist Party of Vietnam has solely ruled Vietnam, which has resulted in an extremely weak civil society, and absolute state control over information and media flows. Although the past several decades has seen a rise in socioeconomic transformation, an oppressive environment continues, with factors such as the ignition of civil society activity and increasing access to the Internet contributing to this environment and the existing policy regarding Internet governance. A number of decrees since 2001 have been issued, regulating Internet content such as Decree 72 and 174. In addition, a number of vaguely worded articles, such as Article 258, 88 and 79 have been implemented that are often arbitrarily used to indirectly criminalize free speech.

Civil Society

In the past 5 years, there has been a surge in civil society activity in Vietnam as individuals and groups begin to be more concerned about the civil and political situation and are willing to change the situation.

In 2011, with tensions rising between China and Vietnam, protests and unrest ignited a group of civil society activists to take action. In February 2015, further groups formed by young activists emerged when Tan Hiep Phat, a food & beverage company, used its financial power and government ties to criminalize an individual who filed a complaint regarding a contaminated product. This created public outrage and initiated a Facebook page calling for the company’s boycott. In March 2015, a new citizen group called “For a Green Hanoi” was formed, following the Vietnamese officials’ decision to cut down 6700 trees. The group successfully organized a number of social activities and demanded transparency and accountability from the government.

Through these events, more individuals in Vietnam are delving into the need to form civil society organizations (CSOs), to make changes to their current situation. Human rights and civil rights issues are now touching the lives of ordinary people and as people in Vietnam are becoming more politically aware, more people are willing to take risks to stand up to the government.

Internet Usage

The rise of Internet usage has also contributed to the existing policy regarding Internet governance. Vietnam has a population of over 93 million1, with 44% of this population having access to the Internet.2 Vietnam is experiencing an explosion of online activity and is forcing the state to be more responsive and repressive. Vietnam has the third-highest rate of Internet penetration in Southeast Asia, behind only Singapore (73%) and Malaysia (67%), with the rise in use of social networking websites and Facebook being the main social networking application most common among youth under 24 years of age, and popular among older age groups as well (who typically use the internet to read news and stay informed).3 The rise of Internet usage, in particular, Facebook, Blogspot and WordPress, has also meant that the Vietnamese government have no choice but to give up on banning its usage. Not only due to the fact that these websites can easily be accessed on all of Vietnam’s internet service providers, but that in order to court foreign investment and remittances from ethnic Vietnamese living abroad, the Internet must be easily assessable and relatively unhindered.

As such, the combination of a rising civil society and access to Internet has resulted in more people in Vietnam becoming politically aware of their political and civil rights, sharing their opinions online, standing up to the state, exposing corruption, and abuses they feel are not being covered by the state owned media. With the Internet being such an assessable platform, the ability to get together and mobilize has bred a crop of not only activists but more Vietnamese people sharing opinions and voices – both conforming and non-conforming.

General usage of laws

In response to the rise in civil society and surge in Internet use, Vietnam has implemented a number of laws regulating Internet usage and vaguely worded laws in the name of ‘national security’ to control their monopoly power, wipe out dissent and punish individuals for exercising fundamental rights. These laws have often been used against independent media websites and independent non-conforming voices such as religious activists, human rights lawyers, and bloggers, inside and outside of Vietnam.

Decrees 72 and 174

Laws that specifically control the content on the Internet are Decrees 72 and 174.

Decree 72 contains provisions, which legalizes content-filtering and censorship and states blogs and social websites should not be used to share news articles, but only personal information. The law also disallows users “to quote, gather or summarize information from press organizations or government websites” and requires foreign Internet companies to keep their local servers inside Vietnam for “inspection, storage and provision of information at the request of competent authorities”. In addition, Decree 72 prohibits any online publication that opposes the Vietnamese government or “harms national security”.

Decree 174 further narrows the space for online expression in Vietnam. The decree provides for new penalties up to VND 100 million (USD 4,700) for individual users, organizations and enterprises who disseminate content that include “anti-State propaganda”, or “reactionary ideologies” on social media sites that may fall short of meeting the requirements for criminal prosecution. Essentially, Decree 174 implements harsh fines for peaceful online expression, and expands upon government powers to censor Internet and social media usage.

The above decrees are often used to punish online media websites that publish ‘lewd content’ or other material that are not overtly critical of the government of the CPV. While they are not often used in practice, the Vietnamese government have stepped up its enforcement against many social media websites since its implementation and have imposed sanctions on at least seven websites, including suspension of a website’s operating permit and fines of up to VND 212 million (USD 10,000), thus reducing the diversity of websites available online. In October 2014, one of Vietnam’s most popular social and file sharing websites, haivl.com, was permanently shutdown due to “providing, exchanging and spreading information, which distorted history and dishonoured national heroes” and fined VND205 million (USD9,500).

Articles 258, 88 and 79

Other vaguely worded laws that are often arbitrarily used to hinder free speech online are Articles 258, 88 and 79.

Article 2584, also known as “Abusing democratic freedoms to infringe upon the interests of the State, the legitimate rights and interests of organizations and/or citizens.” Those who are convicted under this article face up to seven years’ imprisonment. The vaguely worded Article 258 has been used to prosecute a wide variety of people for allegedly ‘abusing’ their freedom of expression and peacefully opposing the state and/or government online. In 2010-2014, 23 activists were charged, sentenced or serving jail terms under Article 258 for peacefully expressing an opinion that was deemed against the state.5

Article 796, also known as “carrying out activities aimed at overthrowing the people’s administration” is designed to prevent dissidents from organizing themselves to compete politically. This law can be used against anyone who peacefully organizes to oppose the party’s dominance or its policies. Organizers, instigators and active participants can face between twelve years to life imprisonment or capital punishment, while other accomplices can face between five to fifteen years imprisonment. At least 40 persons have been sentenced or are currently serving time in prison in 2014 under Article 797 including activist Mr. Ngo Hao (15 years), entrepreneur Mr. Tran Huynh Duy Thuc (16 years), and religious leader Mr. Phan Van Thu (lifetime).

Article 79 is poorly worded, imposes extremely harsh sanctions and fails to distinguish beween the use and non-use of violence in order for an indvidual to regulate their conduct accordingly. As such, Article 79 is easily subject to manipulation by the Vietnamese government for political reasons and can be used against those deemed to be politital risks based on the exercise of their right to freedom of opinion and expression.

Article 888, also known as “conducting propaganda against the Socialist Republic of Vietnam” has been widely used to imprison those who raise their voice in all forms to criticize the government and the CPV. The range of penalties is between three and twenty years imprisonment. Article 88 clearly violates Vietnam’s obligation under international human rights law as it criminalizes free speech and is often used to imprison peaceful dissidents.

Are the laws effective?

Although the Vietnamese Constitution guarantees the freedom of expression and Vietnam is a signatory to treaties such as the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, which guarantees the right to freedom of opinion at Article 19, the Vietnamese government have argued that these laws are set in place in the name of national security and is intended to prevent the spread of false information online and clean information on the internet. Rather, these laws are used to put practice media censorship and put absolute control over those who dare to oppose the regime.

The laws directly regulating Internet governance (Decrees 72 and 174) as well as those that directly impact on freedom of speech (Articles 258, 88 and 79) fail because they are too vaguely worded and restrictive to have any practical application. Consequently, not only is it open to interpretation by the relevant authorities, the claimed end is easily subject to manipulation for political reasons. The vagueness of this provision enables the Government to arbitrarily take action against those deemed to be political risks based on their exercise of their rights to freedom of speech.

Furthermore, articles 258, 88 and 79 fail to differentiate between peaceful and violent activities. Restrictions on the right to freedom of expression must be provided by law and are strictly necessary for either respecting the rights or reputations of others, or for the protection of national security, public order, or public health and morals. The UN Human Rights Committee has stated that for a restriction to be “provided by law” that law has to attain a level of certainty that ensures that it does not confer unfettered discretion for the restriction of freedom of expression.

Impact on freedom of expression

The implementation of these regulations has had a detrimental effect to the freedom of opinion and expression in Vietnam as well as media and information flows.

Decrees 72 and 174 have rarely been implemented since its enactment, and mostly online social media websites have been affected. While social media websites are now much more careful with their content, the laws, which directly affect Internet governance, have not greatly hindered online users’ exercise to freedom of speech due to the rarity of its implementation against individuals and lack of procedure and oversight to discourage registration or data collection. Many individuals who are not heavily active in human rights continue to share their “reactionary” opinions online about the Communist government and other sensitive issues regarding civil and political rights, without any consequence.

On the other hand, the laws and regulations that are intended to safe guard “national security” are often used to arbitrarily punish independent non-conforming voices that are considered to be influential and consistently on-going. Articles 88, 258 and 79 are used to criminalize influential and outspoken human rights activists, including entrepreneur and blogger, Tran Huynh Duy Thuc, who is currently serving a 16 year sentence and Mr. Nguyen Huu Vinh and his assistant, who have been in pre-trial detention since May 2014 and are facing up to 7 years in prison. These articles are often used to punish who dare to challenge the state and give government authorities absolute control to arbitrarily arrest and imprison those trying to exercise their freedom of speech. As these laws are vaguely worded and carry out harsh sentences, it has been somewhat effective in curbing freedom of expression, especially amongst those who are already active in promoting and protecting human rights.

Other than legal sanctions, independent writers, bloggers, cyber dissidents, and rights activists who question the government’s legitimacy or domestic policies, are routinely harassed and assaulted for frequently writing about political and human rights issues in Vietnam. They are targeted by the authorities and are harrassed in many forms. Most of them have been invited or summoned by police to police stations or coffee shops and have being questioned about their writings. In 2014, at least 24 bloggers were reportedly beaten by policemen, plainclothes agents and unidentified thugs9 while in many other cases, several bloggers are kept from leaving their houses to attend public events or meetings with foreign diplomats. In November 2014, a freelance journalist was nearly beaten to death outside Ho Chi Minh City. Nguyen Ngoc Quyen, who writes under her pen name “Mother Mushroom”, was severely beaten while temporarily detained in June 2015. In turn, it hinders the growth of civil society in Vietnam and gives activists a reason to hesitate when expressing their opinion online.

Ironically, as a result of the lack of independence in state media and laws criminalizing the publication of anti-state news, citizen journalism has increased, pushing for more independence in investigation and reporting. Independent news websites such as Danh Lam Bao, Thanh Nhien and Tuoi Tre have been the forefront in independence news and have played an important role in shaping mainstream media, and are now one of the preferred news providers amongst many in Vietnam.

On the other hand, this has not prevented the Vietnamese authorities from cracking down on non-state media. In September 2015, Hanoi police raided the production studio of an underground TV station that had been broadcasting on YouTube since August 2015 and seven people were detained.

Not only are these domestic regulations often arbitrarily used to punish non-conforming voices, online information flows that are not state approved are often blocked. Human rights defenders’ blogs and social networks accounts have been routinely attacked. There are two major forms of attacks: making blogs unavailable to its intended users by Distributed Denial-of-Service (DDoS) and dispossessing blog owners’ accounts. Both forms have been used to attack major blogs such as Anh Ba Sam, Dan Luan, Dan Lam Bao, Chua Cuu The, Boxitvn, and others. In 2010, Mr. Vu Hai Trieu, Deputy Director of General Department 2 of the Public Security Ministry, announced to several hundred Vietnamese media representatives that the department had “destroyed 300 bad internet web pages and individual blogs.”10 Not only does this violate the freedom of expression, it reduces the diversity and breadth of alternative content.

Law policy/direction

Despite Vietnam’s draconian laws regarding Internet governance and freedom of speech, civil society in Vietnam is slowly growing and citizen journalism is being empowered due to the increasing access to Internet. However, for the most part, it appears that the state who stand behind these draconian laws are firm in wiping out dissent as one of their priorities. Specifically, in January 2015, the Minister for Public Security and Politburo member General Tran Dai Quang said that his ministry would be proactively taking on dissent as one of its primary missions. 11

Moreover, the beginning of 2016 saw a reshuffle of the Communist Party, with conservative and pro-China ideologist, Nguyen Phu Trong, extending his term as General Secretary for another 5 years and the oust of pro-U.S. Prime Minister, Nguyen Tan Dung. While there is desire in the government to loosen up on public reforms, it appears that that the superficial reshuffle of the Communist Part will unlikely pave the way for immediate political reforms in terms on freedom of speech online and offline. In an interview with the Associated Press, one Vietnamese scholar, Hiep, has stated,”They are faced with a dilemma. They want to maintain the one-party rule and at the same time they want to have reforms in some limited areas.”12Their trend is to change, but they will still be cautious, because the party’s ultimate goal is to maintain their monopoly on power“, Hiep said. 13 Therefore there are further concerns that repression of critical netizens will exasperate in the near future and new policies toughening the exercise to freedom of expression arising.

In fact, Vietnamese lawmakers have passed an amended Criminal Code, which will take effect from 1 July 2016. 14 Instead of repealing these restrictive laws, the lawmakers have proposed to make it harsher for bloggers and activists.

For example, Article 79 on “Carrying out activities aimed at overthrowing the people’s administration” will be amended to Article 109 “Conducting activities aimed at overthrowing the people’s rights” and Article 88 on “Conducting propaganda against the Socialist Republic of Vietnam” will changed to Article 117 “Causing, storing and distributing information and documents against the State of the Socialist Republic of Vietnam.” For both of these articles, a clause has been added which stipulates that “the preparation of this offense” shall face imprisonment from 1 to 5 years15. What falls as ‘preparation’ is still undetermined but based on the past acts of the Vietnamese authorities, it is likely that this further clause will be arbitrarily used as a catchall to punish non-confirming voices who exercise their right to freedom of speech.

1 ‘Vietnam Population’, Worldometers, http://www.worldometers.info/world-population/vietnam-population/ (accessed 14 March 2016).

2 ‘Percentage of Individuals Using the Internet, 2000-2013’ International Telecommunication Union, http://bit.ly/14IIykM (accessed 23 February 2016).

3 ‘2014 Asia-Pacific Digital Overview’ We Are Social, http://www.slideshare.net/wearesocialsg/social-digital-mobile-in-apac (accessed 23 February 2016).

4 At the time of writing this report, the amended Penal Code has not been in effect but will be in effect from 1 July 2016. Article 258 will be renamed to Article 330.

5 Civil Rights Defenders, “Prosecution of peaceful blogger and other civil society activists must end,” 8 November 2013, https://www.civilrightsdefenders.org/news/statements/prosecution-of-peaceful-bloggers-and-other-civil-society-activists-must-end/

6 At the time of writing this report, the amended Penal Code has not been in effect but will be in effect from 1 July 2016.. Article 79 will be renamed to Article 119.

7 “Vietnam Member of the UN Human Rights Council and Human Rights Violation 2014”, 31 January 2015, Former Vietnamese Prisoners of Conscience et al, http://fvpoc.org/wp-content/uploads/2015/01/HR-violation-ENG.pdf

8 At the time of writing this report, the amended Penal Code has not been in effect but will be in effect from 1 July 2016. Article 88 will be renamed to Article 117.

9 Human Rights Watch, Vietnam – World Report 2015, http://www.hrw.org/world-report/2015/country-chapters/vietnam (accessed 23 February 2016)

10 Human Rights Watch, “Vietnam: Stop Cyber Attacks Against Online Critics”, May 26, 2010, http://www.hrw.org/news/2010/05/26/vietnam-stop-cyber-attacks-against-online-critics

11 ‘Hanoi police should step up alert to sabotage, terrorist acts: security minister”, Tuoi Tre, 7 January 2015, http://tuoitrenews.vn/society/25219/hanoi-police-should-step-up-alert-to-sabotage-terrorist-acts-security-minister (accessed 23 February 2016).

12 Joshi, V., “Vietnam ruling party boss re-elected, cements hold on power”, The Associated Press, 27 January 2016, http://bigstory.ap.org/article/b2645acc6d024375b17dc6e256bb2957/vietnam-communist-party-chief-poised-be-re-elected (accessed 23 February 2016).

13 Ibid.

14 ‘’Vietnam passes amended Penal Code’ Business Standard, 27 November 2015, http://www.business-standard.com/article/news-ians/vietnam-passes-amended-penal-code-115112700990_1.html (accessed 15 March 2016).

15 ‘Vietnam’s Proposed Revisions to National Security Laws’, Human Rights Watch, 19 November 2015, https://www.hrw.org/news/2015/11/19/vietnams-proposed-revisions-national-security-laws (accessed 23 February 2016).