The amended Law on Telecommunications, recently approved by the parliament, applies a “light management” approach which is open and flexible, aiming to protect users' rights, ensure safety and security, and facilitate the development of services, wrote Anh Dang, a senior partner at VILAF law firm.
The National Assembly, Vietnam's highest legislative body, on November 24 passed the amended Law on Telecommunications. The new law includes 10 chapters, 73 articles, regulations on telecommunications activities, rights and obligations of organizations and individuals participating in telecommunications activities, and state management of telecommunications.
This article will discuss the changes enacted under the new law, the consequences of such changes, the potential challenges in its implementation, and relevant recommendations on the content of guiding regulations.
Changes in the new law
There are a number of notable changes in the new law. Firstly, the scope of regulation is extended to incorporate new services: data centers, cloud computing, and basic telecommunications on the internet. This expansion is aimed at catering for new demands in the market that are trending toward digital transformation and convergence between telecommunications and information technology.
The new law also applies a “light management” approach which is open and flexible, aiming to protect users' rights, ensure safety and security, and facilitate the development of services.
Additionally, no foreign ownership limit is applied in relation to these new services, and they are exempt from a number of obligations which traditional telecommunications are subject to such as payment to the Public-Utility Telecommunications Service Fund and operating rights fees.
Secondly, the new law also permits the construction and installation of telecommunications projects on public land and promotes the common use of interdisciplinary infrastructure between telecommunications and other technical infrastructure projects.
The law adds that investors in apartment buildings, public works, functional areas, and industrial clusters are obliged to build telecommunications technical infrastructure.
Simultaneously, these investors are required to design, build, manage and use telecommunications technical infrastructure to meet the needs of at least two telecommunications enterprises. Similarly, law supplements additional responsibilities of people's committees at all levels and relevant ministries and branches to handle acts that hinder the legal construction of rural telecommunications infrastructure.
Thirdly, the law supplements and completes the legal framework surrounding the Vietnam Fund for Public-Utility Telecommunications Services. Specifically, the new law adds provisions on the principles of public-utility telecommunications operations providing regulations on methods of implementation and the responsibilities of relevant parties.
Fourthly, the law now specifically regulates types of telecommunications resources granted through auction. The choice of auction codes and telecommunications numbers will be decided by the market. At the same time, the new law specifically regulates the point price for each type of code, telecommunications number, and internet domain name be put up for auction.
Finally, telecommunications services providers are charged with the responsibility of preventing messages, calls from unwanted callers, and calls with signs of fraud. Users are also prohibited from using their personal information to register for other people’s phone numbers.
To protect the interests of telecommunications service users, the latest Law on Telecommunications also clarifies the responsibilities of telecommunications enterprises in ensuring the confidentiality of users' information, protecting users' personal data, and ensuring service quality. These are some of the few measures to strengthen security in the telecommunications space.
Consequences of the new law
In the age of digital transformation, data becomes the most important resource of the digital economy. Therefore, many countries attach great importance to data center infrastructure, cloud computing, and offer policies and regulations for management.
The general legal environment in Vietnam has also transformed significantly over the past decade. Since 2010, Vietnam has enacted numerous new laws such as the Enterprise Law, Investment Law, Competition Law, and Planning Law, with many changes related to the telecommunications field.
The revised Law on Telecommunications has been researched and developed based on international experience, development trends, and the practical requirements of Vietnam's telecommunications industry, overcoming institutional problems and inadequacies in previous regulations.
In addition, the new law will be consistent with the Vietnamese legal system and compatible with international commitments to which Vietnam is a member, contributing to the simplification of administrative procedures, and orienting the development of universal broadband telecommunications infrastructure, data centers, and cloud computing in a sustainable and modern way, forming digital infrastructure to meet the requirements of digital economic and social development, contributing to ensuring national defense, security and improving the people's quality of life.
Difficulties implementing the new law
Although the Law on Telecommunications rectifies a number of issues existing in its predecessor, certain provisions remain ambiguous and may be difficult to implement.
Firstly, Article 4 of the new law specifies a number of state policies on telecommunications. However, these provisions remain general and the new law fails to specify the measures to achieve these aims.
Secondly and more importantly, with the development of technology, telecommunications services, including basic services, can be provided on the internet, even on a cross-border basis.
This raises the problem of managing OTT telecommunications services on the internet to ensure safety and security while maintaining the growth of the domestic OTT telecommunications market. As explained above, while the new law has expanded its scope to incorporate OTT services, it still applies a “light management” approach. It remains unclear whether this new approach will be able to draw the perfect balance in the management of OTT telecommunications.
Thirdly, the provisions on cross-border provisions of telecommunications services remain underdeveloped. The new law generally only requires that foreign organizations provide basic telecommunications services on the internet on a cross-border basis to service users in the Vietnamese territory on the principles of respecting independence, sovereignty, equality, ensuring safety and security of information, and adhering to commitments made in international treaties. Further guidance from the government is required.
Recommendations
In terms of recommendations on guiding regulations, provisions should fill in some of the gaps in the new law mentioned above to provide a comprehensive framework for enterprises to adhere to.
This is especially important because previously, in Decree 25/2011/ND-CP, the scope of the legislation did not encompass OTT telecommunications services which play an important role in today’s market. Additionally, clearer guidance on cross-border services is indispensable.
Since telecommunications services have a serious impact on national security as well as other political aspects, specific criteria on safety, national security, and public policy goals must be stipulated.
Appropriate control should be exerted over Vietnamese telecommunications enterprises which enter into commercial agreements with foreign organizations providing cross-border telecommunications services to users in Vietnamese territory.
During this transition period, it is also important for government authorities to harmonize between the guiding regulations under the Law on Telecommunications 2009 and the new law.