Decree No. 77/2012/ND-CP dated October 05, 2012 of the Government amending and supplementing a number of articles of the Government's Decree No. 90/2008/ND-CP dated August 13, 2008 on anti-spamming

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT S DECREE NO.90/2008/ND-CPDATED AUGUST 13, 2008 ON ANTI-SPAMMING

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law oninformation technology dated June 29, 2006;

Pursuant tothe Law on telecommunicationsdatedNovember 23, 2009;;

Pursuant tothe Law on AdvertisingdatedJune 21, 2012;

Pursuant to the Law on Handling administrative violations dated June 20, 2012;

At the proposal of the Minister of Information and Communications,

The Government promulgates a Decree to amend and supplement a number of articles of the Government s Decree No.90/2008/ND-CPdated August 13, 2008 on anti-spamming

Article 1. Amending and supplementinga number of articles of the Government s Decree No. 90/2008/ND-CP dated August 13, 2008 on anti-spammingas follows:

1. Amending Clause 14 Article 3, adding Clause 17, 18, and 19 to Article 3 as follows:

“14. Management code means a code issued by the Ministry of Information and Communication to a provider of advertising email services or advertising messaging services, or a provider of information messaging services, or a provider of messaging services via the internet when approving their registration dossier.”

“17. Identification name of a sender used in advertising messaging or information messaging (hereinafter referred to as identification name) is a combination of letters issued by the Ministry of Information and Communications to advertisers or providers of information messaging services, and used to display or identify the information about the sending sources of the messages about the service provision.

18. Information messaging services are the services of using messages to provide information or utilities for users.

19. Syntax of information messaging services (hereinafter referred to as syntax) is a serial of non-case-sensitive letters, given by the provider of information messaging services to refer to a specific information messaging service.”

2.AmendingPoint d, Point e Clause 1 Article 4, adding Point l, Point m to Clause 1 Article 4as follows:

“d) Leading, cooperating, and controlling the prevention and handling of spam of organizations and individuals;”

“e) Receiving applications from and issuing management codes to providers of advertising email services,  providers of advertising messaging services, providers of information messaging services, and providers of messaging services via the internet; receiving applications from and issuing identification names to providers of advertising messaging services and providers of information messaging services;”

“l) Promulgating provisions on serial numbers for sending advertising messages and providing information messaging services, and provisions on issuing identification names;

m) Promulgating provisions on charges for advertising messages.”

3.Amending Clause6Article6,addingClause8, 9 and 10 toArticle6as follows:

"6. Exchanging and trading lists of electronic addresses without the consents from the owners of such addresses.”

“8. Providing information messaging services inconsistently with the request from the users.

9. Hiding the sender’s name or electronic address, or illegally using the name or electronic address of another organization or individual when sending messages and emails.

10. Charging the services without notifying their users.”

4.AmendingArticle 7 as follows:

“Article 7. Principles of sending advertising messages and emails

1.The advertising emails and advertising messages may only be sent after obtaining an obvious prior consent from the receiver.

2. The sending of advertising emails or advertising messages must be immediately terminated when receiving the refusal from the receiver.

3. The advertising emails and advertising messages may only be sent from the electronic addresses and system prescribed by the Ministry of Information and Communications.

4. When sendingadvertising emails and advertising messages, the provider of advertising services must send their copies to the technical system of the Ministry of Information and Communications.

5. It is prohibited to send more than 01 advertising email with the same contents to an email address within 24 hours, unless otherwise agreed by the receiver.

6.It is prohibited to send more than 01advertising messagewith the same contents to atelephone numberwithin 24 hours,and only allowed to send such messages from 7:00 to 22:00 every day, unless otherwise agreed by the receiver.

7. The advertisement contents must be conformable with law provisions on advertising”.

5.Amending Clause3 and Clause 5Article12as follows:

“3. Right after receiving the refusal, the advertiser or the provider of advertising services must immediately send a confirmation of the reception of the refusal, and stop sending the refused kind of advertising emails to such receiver.”

“5. Providers of advertising services or advertisers must not collect surcharge to comply with the refusal to receive advertisements from their receivers.”

6.Amending PointbClause3Article14,addingPointc toClause3Article 4 as follows:

“b) [Management code], applicable to messages sent by the provider of advertising services;

c) If necessary, other special letters may be used in stead of “[“ and “]“ in the mark.”

7.AmendingPoint bClause1, Clause 3, and Clause 5 Article 16as follows:

“b) It is required to instruct the receiver to refuse to accept advertising messages that they registered to receive previously;”

“3. Right after receiving the refusal, the advertiser or the provider of advertising services must immediately send a confirmation of the reception of the refusal, and stop sending the refused kind ofadvertising messagesto such receiver.”

“5. Providers of advertising services or advertisers must not collect surcharge to comply with the refusal to receive advertisements from their receivers.”

8.Amending Clause2Article 17as follows:

“2. When sending advertising emails, the advertiser must:

a) Comply with Article 9 of this Decree;

b) Send from a server of email services with national domains (.vn);

c) Keep the information about the refusals, confirmations of the refusals, and the registration for receiving advertising emails;

d) Keep the advertising emails for at least 60 days;

dd) Take other professional measures at the requests of competent State agencies.”

9.Amending Clause4 Article 18, adding Clause 4a to Article 18as follows:

“4.Keepingthe information about the refusals, confirmations of the refusals, and the registration for receiving advertising emails;

4a. Keeping the advertising emails for at least 60 days.”

10. 10. AddingClause 4a to Article19as follows:

“4a.Providing free tools for preventing spam mails on the email server for users.”

11.Amending Clause 3 Article 20 as follows:

“3. Providing information and preventing the sources of spam mails and harmful software at the request of competent State agencies.”

12.Amending Clause 2 Article 22 as follows:

“2. When sendingadvertising messages, the advertiser must:

a) Comply with Article 13 of this Decree;

b) Send advertising messages from the electronic addresses issued by a telecommunication enterprise licensed to establish mobile telecommunications networks;

c) Keep the information about the refusals, confirmations of the refusals, and the registration for receiving advertising messages;

d) Keep the advertising messages for at least 60 days;

dd) Take other professional measures at the requests of competent State agencies.”

13. AddingArticle 22a as follows:

“Article22a.Identification name

1. All organizations are entitled to register for and use identification names to send advertising messages and provide information messaging services.

2. The registration and use of identification names must comply with the following principles:

a) Impartiality;

b) The sooner the entitled user;

c) The name must avoid ambiguity that cause confusion due to the equivocal Vietnamese accents;

d) The name must be different from that of the Communist Party’s and the State’s organizations.

3. The organization that register for a identification name is responsible before law for the use purpose, the accuracy of the registration information, and make sure that the registration and use of identification names do not violate the lawful rights and interests of other organizations and individuals before the date of registration.

4. Procedures for being issued with a identification name:

a) The organization must submit the registration dossier to the Ministry of Information and Communications;

b) The registration dossier must provide sufficient information about the organization that uses the identification name, including: the copy of the Enterprise registration certificate, the registration for the identification name;

c) The registering organization must pay fees for using the identification name as prescribed by the Ministry of Finance;

d) Within 5 working days as from receiving the valid dossier, the Ministry of Information and Communications must issue the certificate of identification name; the refusal must be notified and explained in writing by the Ministry of Information and Communications.

5. Identification names shall be revoked in the following cases:

a) Using identification names to send spam messages or provide services that violate law;

b) Failing to pay fees for using identification name;

c) At the request of competent State agencies.”

14.Amending PointaClause1Article23,adding Clause 3a, Clause 3b to Article 23; amending Clause 4 Article 23, adding Clause 4a to Article 23 as follows:

“a) The advertising messages must be sent from a technical system in Vietnam, and the technical system must satisfy the requirements from the Ministry of Information and Communications.”

“3a.Being supported to provide services and being responsible before law for all the services and contents provided on the system.3b.Providing the refusals from receivers to advertisers if the list of electronic address used to send advertisements is provided by advertisers.”

“4. Keeping the information about theregistration for receiving advertisements, refusals,andconfirmations of the refusals."

“4a. The advertising messages must be kept for at least 60 days.”

15.Adding Article 23a as follows:

“Article 23a.Providers of information messaging services

1. A provider of information messaging services must satisfy the following conditions:

a) Having a website using a national domain “.vn”; the website must let it users to access the information about the services, at least the service introduction, service charges, instructions to use and to refuse the services;

b) Having a system allowing users to register for using the services, and a system to receive the refusals to use the services from users;

c) Being issued with a management code by the Ministry of Information and Communications.

2.Procedures for being issued with amanagement code:

a) The organization or individual must submit the registration dossier to the Ministry of Information and Communications;

b) The registration dossier must provide sufficient information about the organization that provides information messaging services, including: the copy of the Enterprise registration certificate, the registration for the management code, the list of services being provided;

c) The registering organizations and individuals must pay registration fees as prescribed by the Ministry of Finance;

d) Within 15 working days as from receiving the valid dossier, the Ministry of Information and Communications must issue the certificate of management code; the refusal must be notified and explained in writing by the Ministry of Information and Communications.

3. The management code must be used in accordance with the provisions ofthe Ministry of Information and Communications.

4. The service provision shall be facilitated; and the provider must be responsible before law for their services.

5. The service provision must be stop upon the client’s request.

6. The advertisements must comply with the following provisions:

a) Complying with provisions on sending advertising emails and advertising messages;

b) When advertising on displaying media (the television, papers, publications, the internet…), it is required to provide information about the service charges and the compatible devices for legibly and comprehensibly using the services in Vietnamese. The information about the service charge must be displayed similarly to the syntax, at least at 2/3 of the size of the syntax; c) It is required to specify the service charges right after the instruction when advertising services on radio.

7. The information about the services on the website must be sufficiently and clearly provided before providing the services, including: The service name, corresponding syntax, service description, instruction to use, corresponding service charge, instruction to cancel, supporting telephone, commitment to use services.

8. When providing priced software or priced website, it is required to ensure that such software and websites allow users to accept or refuse to use services at corresponding charges.

9. It is prohibited to charge error messages, messages without services, message with services but their syntax is different from that announced by the enterprise, messages that cheat users.

10. The following data must be kept:

a) All refusal to use services, and all requests for using services;

b) The messages sent by users and by the enterprise within at least 01 year;

c) The complaints of users within at least 01 year.

11.Takingmeasuresfor preventing spam mails and spam services that provide services that violate lawsat the requests of competent State agencies.

12. Making reports and statistics under the instruction from the Ministry of Information and Communications.”

16.Amending Clause2, 6, and 7 Article 24,addingClause 2a, 2b, 2c, 2d, 5a, 5b, 5c, 5d, 5D, 5e, 6a, 7a, 7b,and7ctoArticle24as follows:

“2. Providing tools for receiving feedbacks about spam from users, for accepting and refusing advertising messages as guided by the Ministry of Information and Communications.”

“2a.Guiding subscribers to send notifications of spam and reply to such notifications.”2b. Triển khai hệ thống ngăn chặn tin nhắn rác tối thiểu có khả năng ngăn chặn tin nhắn rác theo nguồn gửi và từ khóa trong nội dung tin nhắn gửi.

2c.Taking measures for assessing the spamming on their mobile network as guided by the Ministry of Information and Communications.2d.Providing electronic addresses for sending advertising messages and providing information messaging services as prescribedby the Ministry of Information and Communications.

“5a. Providingservices of sending and receiving messages, services of sending and receiving messages using identification names for providers of advertising messaging services and providers of information messaging services of whom the management codes have been issuedby the Ministry of Information and Communications.  The agreements on service provision must comply with the guidance fromthe Ministry of Information and Communications.

5b.Within 01 month, the enterprises that have been issued with the management codes must be connected to their system to provide information messaging services and advertising messaging services.  

5c.It is prohibited to discriminate betweenfor providers of advertising messaging services and providers of information messaging servicesbeing their affiliated units, and otherproviders of advertising messaging services and providers of information messaging services.

5d. Providing services of sending and receiving messages, services of sending and receiving messages using identification names for providers of advertising messaging services and providers of information messaging services of whom the management codes have been issued by the Ministry of Information and Communications.  

5D.Returning the service charge upon the request of providers of information messaging services; notifying the users of the refund.  

5e.Preventing and handing the refund of charges for the information messaging services without management codes.”  “6. Limiting the frequency of messaging from each source, preventing messages posing risk of information insecurity as prescribed by the Ministry of Information and Communications.

6a. Preventing and revoke the subscriber numbers used to spread spam.”  

7. Cooperating with other domestic and overseas providers of messaging services  in preventing spam.”

“7a.Complying with the requests made by the Ministry of Information and Communications for preventing and handling spam, for handling notifications and reporting spam.7b.Providing information serving the prevention of spam at the request of competent State agencies.  

7c.Preventing spam from fake sources before they are sent to users.”  

17.AmendingPoint bClause 1 Article 25 as follows:

“b) Taking measures for verifying the sources of messages via the internet.”

18.Amending PointcClause 5 Article 34 as follows:

"c. Exchanging and trading lists ofelectronic addresseswithout the consents from the owners of suchelectronic addresses.”

19.Amendingthe title ofArticle36,and addingPointd and dd toClause 3 Article36as follows:

“Article 36. Violations of provisions on refusing functions”

“d)Failing to takemeasures for verifying the sources of messages via the internet;

dd)Providing information messaging services without a system that allow users to register for and refusing to use the services."

20.Amending Pointa,Clause2,adding Point c to Clause 2, amending Point dd Clause 3, and adding Point i to Clause 3 of Article 37 as follows:

“a) Failing to keep the advertising emails or messages for at least 60 days;”

“c). Failing to keep the information about the registration for receiving advertisements, refusals, and confirmations of the refusals."

“dd) Failing to promptly sending the confirmation of receiving the refusal from the receivers of advertising messages or emails;”

“i) Failing to provide free tools for preventing spam mails on the email server for users.”

21.Amending PointdClause2,Point a and bClause 3,Point a and b Clause 4; addingPoint d and dd toClause 4 Article38as follows:

“d).Failing to stop sending the kinds of advertising emails and advertising messages, or failing to stop providing information messaging services right after receiving the refusals from users.”

“a) Sendingmore than 01 advertising email with the same contents to an email address within 24 hourswithout reaching an agreement with thereceiver;

b) Sending more than 01 advertising message with the same contents to a subscriber number within 24 hours, or sending advertising messages outside the period from 7:00 to 22:00 every day, without reaching an agreement with thereceiver;”

“a) Sending advertising emails or advertising messages without the consent from the receiver;

b) Sending advertising emails or advertising messages from an electronic addresses or technical not in conformity with provisions of the Ministry of Information and Communications;”

“d) Sendingadvertising emailsoradvertising messages,without sendingtheir copies to the technical system of the Ministry of Information and Communications;

dd) Hiding the sender s name and electronic address when sending emails and messages.”

22.Amending PointbClause1, addingPoint c, d and dd to Clause 1, amending Point  aClause2,adding Pointd,d, e, g, h, i, k,l, m, n,andotoClause2, addingPointc, d,dd, e, g, h,anditoClause3Article39as follows:

“b) Providing advertising email services, messaging services via the internet, and information messaging services without a website using the Vietnam’s national domain “.vn”.”

“c) Failing to provide sufficiently and clearly the information about the services on the website before providing the services, including: The service name, corresponding syntax, service description, instruction to use, corresponding service charge, instruction to cancel, supporting telephone, commitment to use services;

d) Using a identification name that violates the lawful rights and interests secured by other organizations and individuals before the date of registration;

dd)Using a identificationnameidentical withthat of the Communist Party’s and the State’s organizations.”

“a) Providing advertising email services, advertising messaging services, or information messaging services without a management code;”

“d) Using a identification name without being issued with a certificate of identification name;

d) Advertising information messaging services on newspapers, audio news, video news, electronic news, websites, the internet, via messages and emails, without information about prices and charges;

e) Advertising information messaging services on newspapers, video news, electronic news, websites, and the internet, but the charges are not displayed together with the syntax, or the information about the prices and charges is smaller than 2/3 of the syntax;

g) Advertising information messaging services on video news, but the information about charges is sliding or running;

h) Charging error messages, messages without services, message with services but their syntax is different from that announced by the enterprise, messages that cheat users.

i) Failing to provide or to completely, correctly, or promptly provide information on the website of a telecommunication enterprise licensed to establish a mobile telecommunications network about the providers of information messaging services;

k) Failing to guide subscribers to report spam, and failing to respond to such notifications;

l) The enterprises that have been issued with the management codes are allowed to connected to their system to provide information messaging services and advertising messaging services after one month;

m) Failing to keep, or incompletely keeping the data as prescribed;

n) The period of keeping data is shorter than prescribed;

o) The provider of advertising services or provider of advertising messaging services does not notify the refusals from the refusal to the advertiser.”

“c) Providing advertising messaging services without using the numbers for sending advertising messages issued by a telecommunication enterprise licensed to establish mobile telecommunications networks;”

“d) Failing to provide tools for receiving feedbacks about spam from users, for accepting and refusing advertising messages as guided by the Ministry of Information and Communications;

dd) Failing to deploy a system to prevent spam that is at least able to prevent spam by source and by keyword in the message content;

b) Failing to provide electronic addresses for sending advertising messages and providing information messaging services as prescribed by the Ministry of Information and Communications;

g) Failing to provide services of sending and receiving messages using identification names for the providers of advertising messaging services or providers of information messaging services that have been issued with management codes by the Ministry of Information and Communications;

l) Not allowing the enterprises that have been issued with management codes to connect to their system to provide information messaging services or advertising messaging services;

i) Discriminating the providers of advertising messaging services and providers of information messaging services;”

23.Adding Clause4to Article10as follows:

“4.Fines of from 60,000,000 VND to 80,000,000 VND for:

a) Failing to return the service charge upon the request of providers of information messaging services, or failing to notifying the users of the refund.

b) Providing priced software or priced website, without allowing users to accept or refuse to use services at corresponding charges.”

24.Adding Clause 3 to Article42as follows:

“3. Fines of from 60,000,000 VND to 80,000,000 VND for illegally using the name or electronic address of another organization or individual when sending messages and emails.

25.AmendingClause 2, Clause 4, Clause 5 Article 43, adding Clause 6 to Article 43as follows:

“2. Revoking management codes and identification names, applicable to the acts of violations specified in Article35;PointcClause3,PointcClause4Article38;Pointd, DClause1Article39.”

“4.Compelling to return the money that has been appropriated or improperly collected when committing administrative violations, applicable to the acts of violations specified inPoint h Clause 2 Article 39; Point a and b Clause 4 Article 40.

5. Temporarily suspending for 01 – 03 months, or permanently forbidding the advertising messaging, emailing, or information messaging services, applicable to the acts of violations prescribed in Point a and b Clause 1, Clause 2, and Clause 3 Article 36; Point d Clause 2, Clause 3, and Clause 4 Article 38; Point a and b Clause 1, Point a, b, c, d, and h Clause 2, Point a, b, and e Clause 3 Article 39; Point a, b, and dd Clause 4 Article 40; and Article 41.”

“6.Confiscating the money collected by committing the violations prescribed in Point c Clause 5 Article 34; and Point I Clause 3 Article 37.”

26. The phrase “provider of messaging services” in Point a Clause 1 Article 23, Clause 7 Article 24, Clause 2 Article 26, Point d Clause 3 Article 37, and Point c Clause 3 Article 39, is replaced with “telecommunication enterprise licensed to establish mobile telecommunications networks”.

Article 2. Effects and Implementation responsibilities

1. This Decree takes effect on January 01, 2013.

2. The Ministries, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, relevant organizations and individuals are responsible for implementing this Decree./.