With the development of new digital services, especially the ones consuming large amounts of bandwidth, such as high-quality video streaming, some Internet service providers (“ISPs“) have started prioritizing certain traffic – such as their own services or the services of their business partners – based on their business needs and plans. They justify this a discriminatory approach by citing the need to raise funds to further invest in their networks. Net Neutrality proponents strongly fight back against such plans arguing that this could limit open access to information and online freedoms, and stifle online innovation.
Net Neutrality regulations in Vietnam
The idea that ISPs should treat all content flowing through their cables and cell towers equally, or Net Neutrality, has been hotly debated globally for nearly two decades. According to this principle, ISPs have to provide access to all sites, content, and applications at the same speed, under the same conditions, without blocking or giving preference to any content. Without Net Neutrality, an ISP can decide what information users are exposed to. For example, if a handful of large telecommunications companies dominate the broadband market, it will put an enormous amount of power into their hands to suppress particular views or limit online speech to those who can pay the most. However, it should be noted that this “neutrality” is not absolute, as there are always restrictions on the lawfulness of the content to be accessed and disseminated in every country.
Countries worldwide have taken different approaches to this principle in regulating the activities of ISPs. While Brazil, Chile, Slovenia, and the Netherlands protect Net Neutrality through national legislation, countries like the US have opted for the contrary. In particular, the 2017 rollback on the Open Internet Order has allowed ISPs to exercise the banning, blocking, throttling or paid prioritization of specific websites or applications. Similarly, China’s approach to Internet policy also does not account for Net Neutrality as the Government uses ISPs to inspect and regulate the content available to their citizens.
In Vietnam, before looking at the issue of Net Neutrality, it should be noted that under Decree No. 72/2013/ND-CP on Management, provision, and use of Internet services and online information (“Decree 72“), an ISP is regarded as a telecommunication enterprise. As such, provisions concerning telecommunication enterprises will also apply to ISPs.
Regarding Net Neutrality regulations, the term “Net Neutrality” and its definition are not specifically provided for in any legislation, and there is no clear or specific provision in Vietnamese law that requires an Internet service provider to treat all contents transferred by its network equally and not to hinder or slow down applications and services on the Internet. However, provisions of laws on telecommunications do provide certain provisions prohibiting the illegal obstruction of information and Internet services.
Specifically, Article 12.6 of the Law on Telecommunications 2009 (“Telecom Law“) prescribes that ISPs shall not illegally obstruct, disrupt or undermine the lawful provision and use of telecommunications services, including Internet access of users. Article 5 of Decree 72 also sets forth that ISPs shall not illegally obstruct (i) the lawful provision and access to information; (ii) the provision and use of lawful services on the Internet of other organizations and individuals; (iii) the operation of “.vn” domain name system servers (DNS servers); and (iv) lawful operation of Internet service and online information provision systems. In addition, the Law on Cybersecurity also prohibits the illegal effect or obstruction of the users’ accessibility to information systems.
There are also provisions on emergency information that must be prioritized concerning service of national defense and security combat of natural disasters, search and rescue, salvage, fires, other disasters and other cases of emergency.
Even though the access to and use of the services online by users may seem to not be obstructed by ISPs, it should be noted that this only applies to information and services that are “lawful”. Contents that violate Vietnam’s national security, interests or sovereignty, and public order and interests are strictly prohibited, and ISPs are able to block or restrict access to such content at their discretion or upon a request from a competent State agency.
Prioritization and Zero-rating
While the ensurance of fair access to lawful content and services is prescribed by Vietnamese law, one major legal loophole remains. That is, there are no restrictions on paid prioritization and other forms of favorable treatment by ISPs. Thus, while ISPs cannot ban, block, or throttle access to websites, they can provide prioritization such as faster connection speed to certain websites and applications. Vietnamese competition law, in this respect, also does not prohibit such acts. In addition, sanctions against acts of illegal obstruction by ISPs are yet to be enacted, leaving unanswered questions as to how the provisions on ensuring equal access by users may be enforced.
This legal loophole also gives rise to the controversial Zero-rating services. Offered mainly to customers by mobile telecommunications providers, these services allow unlimited (free) use of specific applications or services, without this use counting towards a subscriber’s data threshold. In some cases, users are allowed access even without a data plan. It enables ISPs to gain a significant advantage in the promotion of in-house services over competing independent companies, especially in data-heavy markets like video-streaming. A service provider, who is offering unlimited access to their service, will naturally seem more favorable to consumers over one where usage is limited. As many new Internet and content services are launched targeting primarily mobile usage, and further adoption of Internet connectivity globally (including broadband in rural areas of developed countries) relies heavily on mobile, Zero-rating has been regarded as a threat to Net Neutrality. As for the current legal framework, while mobile telecommunications providers like MobiFone have been offering data plans with unlimited use of certain applications such as Zalo, Sky, etc., Vietnam has yet to mention this practice in any legislation.
The future of Net Neutrality and Zero-rating in Vietnam
While the concept of Net Neutrality and Zero-rating under Vietnamese law has yet to be stipulated, market practices have demonstrated that maybe it is high time the Vietnamese Government should delve into these issues as the Internet is playing an increasingly bigger role in the socio-economic and political situation of the world, including Vietnam. That said, with the strong incentives by the Vietnamese Government to regulate the field of technology in recent times, it may be possible that Net Neutrality and Zero-rating will be touched on in future legislations.
