Anti-offensive Advertising on the Internet

The draft Law amending and supplementing an article of the Law on Advertising stipulates that advertising service providers and advertising publishers must have solutions to check and monitor the content of advertisements containing links to other content (Point c, Clause 2, Article 23).

This provision must be interpreted very clearly and distinctly to avoid any shortcomings in the implementation process later. Content monitoring can imply active monitoring or passive monitoring. Active monitoring means that advertising service providers and advertising publishers monitor, analyze and intervene in user data. Meanwhile, passive monitoring means that advertising service providers and advertising publishers can collect and store user data without directly interfering with the content or user behavior.

For the programmatic advertising that is so prevalent online today, passive monitoring is the most appropriate mechanism. Businesses provide intermediary platforms that connect users and distribute advertising content automatically based on big data and algorithms. They can build filtering tools, automatic content scanning, and violation reporting mechanisms to ensure that the content complies with community standards, industry standards, and current legal regulations, but do not actively search for user-generated violating content. In other words, the intermediary platform does not actively monitor user content and is not automatically responsible for illegal content created by users.

This stems from the role and characteristics of intermediary platforms. Intermediary businesses provide technological solutions to connect many advertising buyers (usually brands) with many advertising space sellers (usually press agencies, website owners, content channels), but do not create advertising content. In addition, intermediary platforms also have the limitation of having to comply with regulations on personal data protection, user privacy, and are only able to identify content that actually violates the law when requested by a competent state agency. If regulations require active content monitoring, platforms must overcome this limitation - which is unreasonable.

Therefore, to clarify the passive nature of content monitoring, the drafting agency needs to further specify the regulation: “For advertisements containing links to other content, the linked content must comply with the provisions of law; advertising service providers and advertising publishers have solutions to check the linked content, but do not actively monitor the linked content”. Here, "having solutions to check" advertising content should be understood as automatic content filtering tools that comply with legal regulations on advertising.

Such a provision is also consistent with the provisions relating to intermediary service providers in the Intellectual Property Law, the Telecommunications Law and with international practice. The European Union - one of the world's leading regions in establishing a legal corridor for new technologies, stipulates that intermediary platform businesses do not actively monitor information or collect evidence of user violations.

For example, Article 8 of the European Union’s Digital Services Act (effective from 2023) states: Intermediary service providers are not obliged to monitor information transmitted or stored on their systems, nor to actively seek evidence or circumstances indicating a violation of the law. This provision is a continuation of Article 15 of Directive 2000/31/EC, which does not require internet intermediaries to monitor information transmitted or stored on their servers, nor to collect evidence proving that a violation of the law has occurred on the service they provide.

Clarifying the content monitoring regulations in the draft Law amending and supplementing a number of articles of the Law on Advertising will be a step forward in the process of perfecting laws related to digital technology in Vietnam, contributing to bringing Vietnam's regulations closer to those of countries with developed technology.

Nguyen Lan Phuong, Institute for Policy Research and Media Development

Source: https://daibieunhandan.vn/chong-quang-cao-vi-pham-tren-mang-post408370.html