Unpacking Vietnamese law on e-transaction 2023: a thorough exploration of key points
Tuesday 12 December 2023
Vinh Luu
Managing Partner, Asia Legal, Hanoi, Vietnam
vinh.luu@asialegal.vn
Thu Nguyen
Junior Associate, Asia Legal, Hanoi, Vietnam
thu.nguyen@asialegal.vn
Phong Tran
Junior Associate, Asia Legal, Hanoi, Vietnam
phong.tran@asialegal.vn
Hoa Bui
Legal Assistant, Asia Legal, Hanoi, Vietnam
hoa.bui@asialegal.vn
Introduction
The emergence of the Covid-19 pandemic has significantly boosted e-commerce activities in Vietnam as consumers’ preferences and behaviours have shifted. Nonetheless, the current Vietnamese Law on E-Transaction 2005 (‘Law on E-Transaction 2005’) is essentially a rigid framework and difficult to apply in practice.[1] Primarily resulting from its inheritance from the Model Law on Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL) but lacking specific guidelines.
In 2021, to align with the evolving trend of e-commerce transactions, the Government of Vietnam introduced various policies to promote the advancement of digital government, digital economy, digital society and digital citizenship. As part of these efforts, amendments have been made to the Law on E-Transactions 2005. On 22 June, the Law on E-Transactions 2023 (‘Law on E-Transaction 2023’) was promulgated, which re-emphasised the true essence of the Law on E-Transactions as a flexible and technology-neutral framework law, similar to the UNCITRAL Model Law on E-Commerce.
The scope of applications
Currently, the Law on E-Transaction 2005 restricts administrative and judicial procedures such as marriage registration, divorce, birth registration, issuance of certificates of land use rights and ownership of houses and other real estate. Those restrictions may prevent the development and application of technology in serving administrative procedures. In fact, as of September 2021, Vietnam has 25 provinces out of 63 provinces and cities that allow online registration for marriage procedures at level 3 [2]. Although the initial intent of the Law on E-Transactions in 2005 was to govern the procedural aspects of electronic transactions, [3] the current regulations still have not clearly expressed such orientation and therefore need to be reemphasised [4].
As a result, the Law on E-Transaction 2023 has changed the scope of application. Accordingly, it clearly stated that Law on E-Transaction 2023 shall not regulate the substance or content of an electronic transaction, but rather govern the procedural aspects and format requirements associated with conducting transactions through electronic means. In the event the specialised law does not allow conducting transactions by electronic means, the parties need to follow that specialised law.
Furthermore, the Law on E-Transaction 2023 repeals the restrictions in the Law on E-Transaction 2005. Indeed, every transaction conducted through electronic means, in any field, will fall into the scope of the Law on E-Transaction 2023.
In conclusion, the Law on E-Transaction 2023 broadens its applicability to encompass all socio-economic activities and does not duplicate the provisions pertaining to the substance and prerequisites of transactions that are already prescribed by other laws.
Data and data message
Definition of ‘data’
Despite having been known, stored and utilised by humans for decades, ‘data’ still lacks a clear and consistent legal definition. Many national laws continue to equate ‘data’ with the term ‘information’.[5] In fact, the definitions of ‘information’ and ‘data’ can be interchangeable and may not clearly be distinguished. [6] Specifically, the essence of ‘data’ is the value that realistically describes the inherent characteristics of an object.[7] Meanwhile, ‘information’ provides knowledge about facts or people. For instance, data regarding height, weight or date of birth has very little value when it is unknown to which person it belongs. When combining more data like the name, address and place of birth, inter-linked pieces of information and context express knowledge about the identity of a person. [8]
Under the Law on E-Transactions 2005, the distinction between ‘data’ and ‘information’ is vague and could easily be confused because of the two definitions:
- ‘Data means information in the form of symbol, script, numeral, image, sound or the like.’
- ‘Data message means information created, sent, received and stored by electronic means.’
Such provisions are not rational and may not properly recognise the roles of data and information in computer science as well as in e-transactions. Which data should be referred to as raw, unprocessed facts, figures, symbols, or values that have little or no context or meaning on their own, while information should be recognised as processed, meaningful data that has context and conveys knowledge.[9] However, it should be noted that electronic means do not truly understand information or data because they consist only of piles of circuits and related hardware.[10] The basic components of an electronic means, such as transistors and logic gates, can only distinguish between two states ‘on’ or ‘off’ typically labelled as 1 and 0, and are thus called ‘binary bits’. By representing information or data as ‘on’ and ‘off’ states, electronic means can convert such information or data into binary bits and execute the tasks they have been designated to perform.[11]
Under the Law on E-Transaction 2023, ‘Data means symbol, script, numeral, image, sound, or similar form that contains information’, thus, data under the new definition will be understood as what can be seen, heard, recognised or processed to obtain information. Understanding the distinction between ‘data’ and ‘information’ affects how we handle, store, analyse, and generate information out of data.[12] Consequently, other derivative terms are also updated under the Law on E-Transaction 2023 according to the new definition of ‘data’, such as: ‘digital data’, ‘master data’, ‘electronic data interchange’, ‘data processing’, etc.
Clarifying the difference between data and information also enables the Law on E-Transaction 2023 to permit the conversion of data messages from digital to text form and vice versa. If we can transfer all necessary information/properties/attributes within a data message to a paper copy and to be used as a reference, then such conversion should not be denied its legitimacy. [13] With the acceptance of the legal validity of the converted data messages, individuals and enterprises can expect an enormous saving of time and money because it can help partially reduce document authentication procedures in certain mandatory situations.
Certifying and authenticating data message
In addition to the new approach toward ‘data’ and ‘information’, the Law on E-Transaction 2023 has stipulations on the textual validity of data messages[14], which allows diplomas, certificates, licences, permits, contracts and other documents to be accepted in electronic forms if the ‘information’ contained in such electronic forms can be accessed and make reference when necessary. Furthermore, if a document is required by law to be certified or authenticated, the corresponding data message will be considered as fulfilment of such requirement if it is certified or authenticated in compliance with the law on certification and authentication.[15]
The regulations on the certification of data messages still need further guidelines from the government. Additionally, although the authentication of data messages has already had a legal framework for a specific type which is the service of authenticating e-contracts,[16] it is still necessary to have further regulations for other types of data messages to be authenticated in practice.
Since the parties of e-transactions still have concerns about how to wholly conduct or perform the e-transactions by electronic means when some compulsory documents for the transactions must be certified or authenticated as required by laws, the regulations, with respect to certifying and authenticating data messages of the Law on E-Transaction 2023, can address this concern.
Conversion between paper copies and data messages
The need to convert data messages between paper and electronic formats, while not a new concern, remains constrained due to the inadequate provisions of the Law on E-Transaction 2005. Fortunately, the Law on E-Transaction 2023 sets out the requirements for the conversion and allows the conversion of paper copies into data messages and vice versa. Accordingly, if individuals, organisations or agencies have the intention of converting between paper copies and data messages, they must comply with a set of requirements as follows:[17]
- the information contained within such data messages must be ensured its integrity as in the textual copies;
- the information contained within such data messages can be accessed and made reference; or the information system used to generate, send, receive and store the original data message can be verified;
- having specific marks from the agencies, organisations or individuals conducting the conversion for confirmation of the conversion; and
- having the signature/e-signature of the agencies or organisations conducting the conversion in the case of converting e-certificates.
These regulations require agencies, organisations and individuals, and especially businesses, to use a conversion system or software which has a digital signature integrated into it and has the ability to attach the specific mark confirming the conversion onto the converted data messages or paper copies.
Storage of data messages
The Law on E-Transaction 2023 recognises that storing data messages has the same legality as storing paper documents.[18] Moreover, it mostly sets no restriction on choosing between storage of the paper version and storage of the electronic version.[19] This regulation will promote the simplification and systematisation of the storage process, especially for businesses. Indeed, with the availability of storing e-versions of business documents, such as contracts, accounting documents, etc, businesses can easily manage and organise a great number of documents without loss, following the amendments and supplements of documents, if any.
However, the Law on E-Transaction 2023 pointed out an exception for storage regulations. In the case that other specialised laws have specific requirements that require some organisations to document storage in paper version, the requirements of those specialised laws will prevail [20], for example, Decree No 174/ND-CP dated 30 December 2016 detailing some of the articles of the Vietnam Law on Accounting provide that state accounting units (excluding units collecting and using state budgets at all levels), when choosing to store accounting documents electronically, must still print out the general accounting books onto papers and have them signed and stamped (if applicable) for book-keeping purposes.[21]
E-certificates
Currently, the utilisation of e-certificates in both commercial and non-commercial transactions is popular in various countries around the world. For instance: Estonia offers e-Residency,[22] Singapore’s government provides a digital identity system called SingPass,[23] the US Patent and Trademark Office utilises e-certificates for trademark and patent registrations [24], etc. Although the definition of ‘e-certificate’ has been provided in the Law on E-Transactions 2005, it only refers to the use of e-signatures. Currently, the Law on E-Transaction 2023 classifies e-certificates into the following types:[25]
- An e-signature certificate is a data message used for authenticating the connection between the e-signature and the corresponding signer. E-signature certificates are classified into different types corresponding to different types of e-signatures, such as public key digital signature certificates and specialised digital signature certificates for official purposes.
- E-certificate means data message issued by competent agencies, or organisations as a result of administrative procedures or in the electronic form of a diploma, certificate, licence, accreditation, permit, qualification or other similar documents.
Since 2014, the Law on Enterprises has encouraged businesses to conduct online business registration procedures, but the results of these procedures were still presented in paper form. [26] Similarly, the COVID-19 era has expedited the adoption of electronic travel permits and e-certificates for vaccinated citizens, etc. [27] Therefore, the Law on E-Transaction 2023 sets out the legal framework for e-certificates, including the conditions of e-certificates to affirm their validity. [28]
Furthermore, as a type of data message, e-certificates can be converted from a data message version to a paper version and vice versa, which may facilitate the use of e-certificates in everyday transactions and administrative procedures.
Amending the e-signature regulations and adding new regulations on trust services
The Law on E-Transaction 2005 regulates the definition of ‘e-signature’ and conditions to ensure the security of an e-signature. Thus, an image or sound signature seemed to be one of the e-signatures. All of these e-signatures have validity when applied to the data message. On the other hand, the Law on E-Transaction 2023 changed the rules on e-signatures, specifically, changing the definition of e-signature to be a signature created in the form of electronic data, either attached or logically associated with a data message, to authenticate the signing entity and affirm their approval of the data message; [29] dividing the e-signature into three types based on the application, including:
- specialised electronic signatures;
- public digital signatures; and
- specialised official digital signatures.
Each type of electronic signature has to meet certain conditions to have validity. Specialised electronic signatures ensure security and digital signatures have the legal equivalence to the individual’s handwritten signature on paper documents. [30] Therefore, with the new regulations, the image and sound signature are classed as an e-signature but are not considered as an individual’s handwritten signature, so they are not valid.
Further, the Law on E-Transaction 2023 also stipulates that electronic signatures and certificates issued by foreign service providers shall be legally recognised in Vietnam after completing the procedures which are prescribed by the Ministry of Information and Communications.
During the signing of the e-contract, most parties will not meet in person, thus identifying and authenticating the information of the parties is a principal prerequisite to a legitimate e-transaction. There are intermediary and supporting services in e-transactions to identify and authenticate information of the parties that have been regulated by several Decrees and Circulars. However, under the Law on E-Transaction 2023, services related to timestamp, authenticating data messages and authenticating public digital signatures are regulated in this Law and the trust service is one of the conditional business lines in Vietnam, of which the service providers shall be permitted by the Ministry of Information and Communication for a duration of 10 years. Such a timeframe may be sufficient for the service providers to strategise technology innovation and adapt to global technological advancements.
Supplementing the legal framework for applying e-contracts
The Law on E-Transaction 2023 retains the fundamental concept of e-contract application, which refers to the creation, transmission and receipt of data messages. In addition, the Law on E-Transaction 2023 supplements that the contracts that are entered into or executed through automated information systems shall not be undermined or negated their legal validity, even in the absence of human inspection or intervention in the specific actions carried out by these systems. [31] This regulation may interpret an open and progressive approach towards the concept of smart contracts, [32] which has emerged as a promising trend in recent years. [33]
Synchronising the rights and obligations of the owner of the information system and the use of e-transaction accounts
The Law on E-Transaction 2023 has introduced a new chapter focusing on information systems serving e-transactions. Although the regulations of responsibilities of the owner of the information system are mainly cross-references from the Cybersecurity Law and the Law on Information Security, the new law has taken a further step in expanding the scope of regulation to cover digital platforms and intermediary digital platforms. Consequently, any digital platform that supports the involved parties to conduct e-transactions or develop their products and services must comply with the technical conditions and requirements stipulated by the government. Simultaneously, the Law on E-Transaction 2023 provides that users of the information system must register and use e-transaction accounts granted and managed by the owner of such information system, and one of the prerequisites to be evaluated when determining the existence of e-transactions is whether the information system can record history activities associated with the e-transaction accounts of the involving parties.
Additional regulations on data collection, management and sharing among state agencies
The Law on E-Transaction 2023 establishes principles for the management, planning, development and sharing of data among state agencies to serve administrative procedures. This regulation allows for the simplification of administrative procedures and reduces the collection and sharing of data and information among government bodies. In addition, recently, the Vietnamese Government approved Decision 06/QD-TTg on the project to develop the application of population data, identification and electronic authentication for national digital transformation in the period 2022 to 2025, with a vision of 2030. Accordingly, 100 per cent of individuals and enterprises will use level 4 online public services [34] when carrying out administrative procedures. The result of this public service is an e-certificate, which has the same value as the paper version. These amendments allow the Decision to be implemented in a systematic manner and with a transparent legal basis.
Conclusion
The pivotal clauses within Vietnamese Law on E-Transactions 2023 are set to profoundly transform the digital environment and apply to e-transactions in almost every aspect of socioeconomic activities. It is expected to establish a comprehensive framework for addressing the complexities and prospects of the contemporary digital era, empowering both individuals and organisations to effectively engage in electronic transactions and digital transformation at the national level.
Notes
1 The People’s Deputies Newspaper, ‘Science, Technology and Environment Committee consulting on the Draft Law on E-Transaction (amended)’ (12 May 2023) <https://quochoi.vn/tintuc/Pages/tin-hoat-dong-cua-quoc-hoi.aspx?ItemID=75777> accessed 16 August 2023.2 Tinh Nguyen, - ‘How to proceed the online marriage registration?’ (LuatVietNam, 1 September 2021) https://luatvietnam.vn/hanh-chinh/thu-tuc-dang-ky-ket-hon-online-570-18918-article.html accessed 1 November 2023.
2 Online public service level 3 does not allow users to pay fees and receive results online.
3 National Institute for Finance, ‘Law on E-Transaction: Shall not govern the contents of specialized laws’ (27 October 2004) accessed 1 November 2023.
4 Minh Hung, ‘Amending Law on E-Transaction: Ensuring the proactive development of the market’ (24 October 2022) accessed 1 November 2023.
5 Do Giang Nam, Dao Trong Khoi, ‘Xây dựng quy chế quyền tài sản cho dữ liệu: nhu cầu và thách thức pháp lý’ at accessed 1 November 2023
6 Lothar Determann, ‘No one owns data’, Hasting Law Journal, Vol 70:1, p 6.
7 Do Ha Phuong, Han Trung Dinh, Computer Hardware textbook (Industrial College 4 2008) 7.
8 Tran Thi Nguyet, ‘Research for building data management framework for data management of Viettel network corporation’ (Master Thesis, Technology University, Vietnam National University, Hanoi 2019)
9 David Bawden, Lyn Robinson, ‘Introduction to Information Science’ (Facet 1, 2012) 53-54.
10 Alan D Kaplan and Tzyy-Ping Jung, ‘Challenges in Building Emulation-Based Brain-Computer Interfaces’ (January 2019) www.researchgate.net/publication/330357386_Progress_in_Brain_Computer_Interfaces_Challenges_and_Trends accessed 1 November 2023.
11 Michael Sipser, Introduction to the Theory of Computation (3rd edn, Cengage Learning) 31-34.
12 ‘Understanding computers today’, Module Introduction 2, Chapter 1, ‘Data vs. Information’, 11-12.
13 Pham Thanh Huu, Nguyen Thi Hoai Thuong, ‘Conditions of conversion from certificate in paper into e-certificate’ (30 March 2023) accessed 1 November 2023.
14 Law on E-Transaction 2023, Art 9(1).
15 Ibid, Art 9(2).
16 Decree 52/2013/ND-CP.
17 Law on E-Transaction 2023, Art 12.
18 Ibid, Art 13(3).
19 Ibid, Art 13(2).
20 Ibid.
21 Decree 174/2016/ND-CP, Art 10.
22 Nathan Heller, ‘Estonia, the Digital Republic’ (11 December 2017) accessed 1 November 2023.
23 Singpass, www.tech.gov.sg/products-and-services/singpass accessed 1 November 2023.
24 The United States Patent and Trademark Office (USPTO), ‘USPTO issuing electronic registration certificates’ accessed 1 November 2023.
25 Law on E-Transaction 2023, Art 3(5), (13)
26 Decree 78/2015/ND-CP, Art 38.6.
27 Bui Thu Hang, ‘Digital transformation, application of digital technology in law-making’ (7 October 2022) accessed 1 November 2023.
28 Law on E-Transaction 2023, Art 19.
29 Ibid, Art 3(11).
30 Ibid, Art 23(2).
31 Ibid, Art 34(1).
32 Adam P Balcerzak, Elvira Nica, Elzbieta Rogalska, Miloš Poliak, Tomáš Klieštik and Oana-Matilda Sabie, ‘Blockchain Technology and Smart Contracts in Decentralized Governance Systems’ (2022)], Administrative Sciences 12, 96.
33 Hamed Taherdoost, ‘Smart Contracts in Blockchain Technology: A Critical Review’ (2023) Information 14, 2.
34 Level 4 online public service allows users to pay fees and receive results online.