Vietnam's New Internet Decree

From the flurry of alarms filling space in Western media last week, a reader could be forgiven for thinking that the Vietnamese government has finally figured out how to suppress the dissident bloggers that torment it.

The furor has been prompted by Decree-Law 72 on Management of the Internet, which the Hanoi regime published on July 30. A spokesman for the Committee to Protect Journalists called the edict "Vietnam's latest attempt to...deter all forms of critical commentary online."?"Nothing less than the harshest offensive against freedom of information since...2011" declared Reporters sans Frontiers (RSF). The US Embassy expressed "deep concern." "A new low," said the Washington Post.

Attention has focused on a few lines in Article 20 of the decree, which forbid bloggers or people who post to FaceBook and other social media to "provide aggregated news."

Trouble is, that's probably not what the Vietnamese authorities intend, and even if they do, stopping their Internet-savvy citizens from reposting or linking to news stories is almost certainly beyond their ability.

Foreigners tend to take reports of human rights violations in Vietnam at face value and assess them out of context. That's not surprising. Hanoi's dogged effort to punish bloggers for "conducting propaganda against the Socialist Republic of Vietnam" (Article 88 of the Criminal Code), "carrying out activities aimed at overthrowing the people's administration" (Article 79) or "abusing democratic freedoms" (Article 258) has conditioned foreign human rights advocates to assume the worst of motives and methods.

This time it's not so simple. For the last quarter-century, Vietnam has been striving to adapt the ideological underpinnings of the Communist regime, a theory of "socialist law" based on a Leninist Russian model, to suit its current objective of blending successfully into a global, capitalist economic system.

Reformers argue that it's high time to scrap the notion that every right is qualified by corresponding duties, for example, that a citizen can't exercise his right to speak or publish freely, worship as he wishes or associate with like-minded friends if such activity "infringes on the interests of the state." Regime conservatives think that's a terrible idea. They apprehend a slippery slope here, one that's likely to lead to the overthrow of the Communist Party's constitutional role as "the force leading the State and society."

The quest for a "socialist law-based state" leads to a muddle of legislation that attempts to weld principles and rules appropriate to a growing economy and widening world-view to what's left of Marxist-Leninist ideology. There's hardly a better example of this muddle than Prime Ministerial Decree-Law 72, the 46 article, 21 page internet management edict that's been so roundly condemned in the Western media.

There's not a lot of new content in Decree 72. Most of it simply repackages a 2008 instruction that sought to extend principles of public media management to a new phenomenon, the interactive Internet and the rise of social media.

Take the decree's article 6, for example. A fair number of Western commentators have been clucking about its "alarmingly vague" and "chilling" proscriptions against using the internet to oppose the State, damage national security or social order, foment regional, religious or ethnic discord, propagandize for war or terrorism, betray State secrets, slander, or publish depraved and obscene materials. That's standard stuff in Vietnamese media management laws, lifted directly from the nation's constitution. For dissident bloggers, it falls, almost, into the category of "white noise."

Long sections of the decree set up legal frameworks to govern mobile internet services, which didn't exist in 2008, and extend restrictions on video games. The prescriptions on mobile internet are technical and quotidian. As for online games, they're epidemic in Vietnam, to the chagrin of many millions of parents, and at least as resistant to State control as online blogging.

There are two, or perhaps three, genuinely new and problematic elements in Decree 72.

First, the regime seeks to distinguish among different kinds of "electronic information sites." That's the section that prompted the furor over what might or might not be legally postable on a blog or Facebook. Inter alia, Decree 72 defines a "news aggregation site" as "the website of an agency, organization, enterprise that provides news by extracting the exact, verbatim text from legal (or 'legitimate') sources, clearly citing the author or organization that is the source, and when it was published. In contrast, says the decree, "an individual('s) webpage is established by an individual or makes use of services provided by a social network to exchange information of a personal nature, [and] neither represents an organization or another individual nor provides aggregated news."

After RSF had blasted this passage as an effort by Hanoi to prohibit posters on blogs or social networks from sharing information copied from news sources, other western critics jumped on board. It took several days for Information Ministry officials to enter a not guilty plea. "'We [will] never ban people from sharing information or linking news from websites. It was totally misunderstood,' Nguyen Thanh Huyen, head of the ministry's Online Information Section, told Reuters. 'This is a normal decree which doesn't go against any human right commitments.'" The essential difference between "news aggregation sites" and "individual webpages" seems to be the obligation of the former, if registered in Vietnam, to deliver up data on users on the request of the government ? which leads to the second innovation. Hanoi wants internet service providers (ISPs) to locate at least one server in VN and provide data on users at the request of the authorities. Big international providers like Google, Yahoo, Facebook and eBay, united as the Asia Internet Coalition -- seem unlikely to cooperate with this provision, arguing that it "will stifle innovation." Nor need they cooperate as long as Vietnam's 30 million internet users can get access to offshore servers simply by adjusting the DSL settings on their computers.

The third new idea, said by the Ministry of Information to be the main motive for revision of the internet management regulations, is that Vietnam needs to tighten up protection of intellectual property. In principle, the ministry is absolutely right: on and off-line, Vietnamese publishers blithely reprint whatever suits them, whether domestic content or foreign, sometimes with acknowledgement and often not. It's a practice that sucks most of the profit out of being creative.

On the near horizon is the Trans-Pacific Partnership, the "twenty-first century trade agreement" that the US is promoting. Hanoi dearly wants into the pact, but part of the admission fee is a credible commitment to protect other partners' intellectual property. That's a tall order. Particularly in the online realm, Vietnamese authorities are incapable of policing whether citations are full and accurate, let alone chase down failure to respect copyrights. It's terra incognita for Vietnam's courts.

When a server is offshore, Hanoi has scant leverage to compel "news aggregators" or bloggers on FaceBook to refrain from hoovering up and republishing the most interesting stories, whether they're from the New York Times or a Vietnamese provincial newspaper.

The same difficulties arise with many other requirements laid down in the new decree, no less than with the 2008 circular. That's a common problem with Vietnam's laws and directives: they tend to be statements of principle that are unenforceable in general.

After the 2008 circular was issued, Vietnam's leading blogs moved offshore. Most are now hosted by WordPress or Blogspot. Though still vulnerable to malicious hacking, these blogs are beyond the reach of Vietnam's laws but well within the reach of Vietnamese readers. For FaceBook or Google, also offshore and virtually immune from Hanoi's sanctions, official constraints on content that may be posted by users are even less worrisome.

So in the end, like so many Vietnamese laws and decrees, the controversial provisions of Decree 72 seem mostly hortatory, ideologically motivated and impossible to enforce in a systematic way.

In due course, another circular will specify fines that may be levied for violations of the new decree. However, if past is precedent, Decree 72 won't make much difference. Hanoi already has plenty of punishments it can mete out to dissident bloggers when it chooses. Often it has stooped to prosecuting on trumped up charges of tax evasion when it doesn't want to deploy heavier weaponry. On one pretext or another, by RSF's count, it has put 35 online critics behind bars already this year. That explains why the new decree has triggered relatively few alarms in the Vietnamese blogosphere; at worst it seems no more threatening than the rest of Hanoi's arsenal of thought repression.

(David Brown is a retired US diplomat with wide experience in Southeast Asia, particularly Vietnam)