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Thứ sáu, ngày 07/10/2022

Lấy ý kiến nhân dân về dự thảo văn bản quy phạm pháp luật "Tờ trình Chính phủ và Dự thảo Luật Giao dịch điện tử (sửa đổi)"

Các ý kiến đóng góp
Người gửi: Sim Xin Yi


Dear Mr. Vo Quoc Truong, 
I hope this letter finds you well. On behalf of the Asia Cloud Computing Association (ACCA), we would like to thank the Ministry of Information and Communications (MIC) for the opportunity to comment on the Draft Law on Electronic Transactions (“Draft E-Transactions Law”). We appreciate the MIC’s consultative approach in seeking industry views on new legislation, and we highly encourage continuity in this consultation process to ensure an accurate assessment of the impacts of these reforms on Vietnamese consumers and businesses. 
The digitalization of services has brought about immense benefits for both consumers and businesses in Vietnam, including lower prices for goods and services, as well as accessibility to digital tools. However, these benefits are at risk of being upended once the Draft E-Transactions Law is implemented. In this regard, we would like to highlight some of our key recommendations on the existing Draft E-Transactions Law to avoid its inadvertent detrimental consequences on Vietnam’s digital economy.
a.     Clarification around definitions of terms used.
It is necessary to provide a coherent and accurate definition of the variety of terms referenced in the Draft E-Transactions Law, including “digital platforms”, “intermediary platform providers”, and “large number of regular users”. The current definitions are overly broad and could lead to over-regulation in the digital sector. The Draft E-Transactions Law has not provided a clear articulation on the criteria for determining “digital platforms” as “large” or “dominant”. There are fundamental differences between digital business models, as well as the nature of digital services supplied. The absence of clarity in these terminologies could cause confusion and uncertainty in the compliance process for many international digital businesses. This inadvertently hampers international and local corporate investments as consumers and businesses struggle to access the same tools elsewhere at lower costs.
Instead of adopting a broad-brush approach to the entire sector of companies, we emphasize the need to identify and articulate a clearly defined and evidenced harm that the proposed reforms in the Draft E-Transactions Law are intended to address. This will help to focus on whether particular activities or services raise issues that need to be covered under the Draft E-Transactions Law.
b.    Extension of timeline for further assessment.
Referencing Articles 72 to 74 of the Draft E-Transactions Law, we are aware that new obligations on different categories of digital platforms are largely borrowed from the European Union’s (EU) Digital Markets Act (DMA) and Digital Services Act (DSA). We would like to caution against the duplication of obligations from overseas legislation as these developments have not yet passed and they could prove to be ineffective. In view of how new and untested the DMA and DSA are, many other jurisdictions are approaching these developments with caution, with some preferring to wait and see how these developments materialize. Similar to the regulatory developments in international best practices, a study is typically undertaken to identify and assess specific harms before designing regulations to address those harms, whilst considering the costs of such regulations on consumers and businesses.
In this regard, we strongly urge MIC to avoid rushing the implementation of the Draft E-Transactions Law by providing a clear transition period – similar to the EU’s DMA and DSA. This will allow sufficient time for MIC to observe how these regulatory developments unfold and re-assess the potential long-term impacts of the Draft E-Transactions Law on Vietnamese consumers and businesses. At the same time, MIC can make the necessary amendments to ensure that the Draft E-Transactions Law is fit-for-purpose.
c.     Exclusion of registration requirement for international service provides that do not have a material presence in Vietnam.
Based on Article 55(2) of the Draft E-Transactions Law, international digital service providers are obliged to register for the electronic transaction system with MIC. This requirement applies to service providers that neither have a material presence, nor local operations in Vietnam. Digital service providers will assess the value of their service against the new requirements in the Draft E-Transactions Law; and the registration requirement can be viewed as a highly administrative obligation that could inadvertently result in the reduced scope of services or roll-back of some of their services offered in Vietnam.
In this regard, we strongly recommend that specific consideration be given to excluding international service providers that do not have a material presence in Vietnam. These digital providers are in a completely different position to those that are physically present in Vietnam, where Vietnamese businesses and consumers comprise a material portion of the providers’ business. Where there is a clear nexus with Vietnam, the new requirements should only apply when a digital service provider has a material presence.
d.    Follow Principles of Proportionality and Provide Sufficient Safeguards.
We recommend that MIC consider principles of proportionality in ensuring that the scope of reforms do not unnecessarily create an unlevel playing field to the detriment of consumers and competition. The additional administrative requirements on international service providers, referencing Article 54(4) of the current Draft E-Transactions Law, as well as the risks associated with compliance, would place them at a disadvantage due to the higher costs of doing business in Vietnam. This additional administration imposed on international digital service providers appears disproportionate to any benefits for Vietnamese consumers and businesses.
In this regard, new regulatory requirements should be accompanied by appropriate due process safeguards. These include allowing companies the right to appeal and review any evidence put against the companies on the basis that the services offered bring about higher benefits than harms to consumers.
e.     Remove data localization requirement.
 Based on Article 97, international service providers that provide outsourcing activities are obligated to store the information of state agencies in Vietnam. We suggest that this data localization requirement be removed as it does not seek to improve personal data security outcomes for Vietnamese consumers. This requirement, is however, counterproductive in hampering business innovation and thereby limiting the supply of international digital services to Vietnamese consumers and businesses.
Overall, we encourage MIC to consult international service providers and understand the impacts of these new requirements on Vietnamese consumers and businesses. As the apex industry association, the ACCA’s mission is to accelerate the adoption of cloud computing through Asia-Pacific by helping to create a trusted and compelling market environment, and a safe and consistent regulatory environment for cloud computing products and services. Thank you for your consideration and we welcome any clarifications from the MIC regarding the above issues.
Best regards,
Sim Xin Yi
Asia Cloud Computing Association

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