Both in modern world and in days past, people have highly valued their honor and dignity. In fact, social standing has always been considered one of the foremost factors in determining whether a person is successful in society. As such, it is not surprising that some individuals, who want to advance their goals, have inevitably used various means to insult the honor and dignity of others to benefit themselves. To protect the honor and dignity of individuals, the laws of countries around the world contain specific provisions penalizing such behavior. Two of these behaviors, that carry criminal, administrative and/or civil liability in Vietnam, are Defamation and Bad Mouthing. In this article, we outline the laws of Vietnam and the sanctions relevant to addressing Defamation and Bad-mouthing towards others as well as the best practices in handling these claims.
Regulations in Vietnam on Defamation
Article 156.1 of Criminal Code 2015 stipulates that ‘A person who commits any of the following acts shall be liable for a fine of between VND10,000,000 to VND50,000,000, be sentenced to probation of up to 02 years or imprisonment between 03 months to 01 year: Fabricating information or spreading information which is clearly known as being false to seriously infringe on another person’s dignity or reputation or harm another person’s lawful rights and interests; or fabricating that a person commits a crime and reporting them to the competent authorities.’
Although the provisions on defamation have been prescribed by the Laws of Vietnam, it is necessary to determine the elements that constitute the crime of defamation to define defamatory acts; according to the Comments on the Criminal Code 2015 book, the constitutional elements of defamation comprise the following:
The objective side of the crime
In terms of objective behavior, an offender who commits defamation has one of the following acts:
- First, fabricating information in order to offend honor or cause damage to the legitimate rights and interests of others. Specifically, such behavior is committed when the offender fabricates and spreads information that is untruthful and distorted for the purpose of offending the honor of others or to damage the legitimate rights and interests of others.
- Secondly, spreading information that is known to have been fabricated in order to offend honor or damage the legitimate rights and interests of others. Such behavior occurs when the offender does not make false statements about others but knows that the information is fabricated (the offender’s knowledge of what he/she is spreading is a requirement), and spreads these false statements to others.
Damage to reputation and rights/interests
Although actual damage to reputation or rights/interests may not have occurred, the existence of damages often comprises fundamental evidence of the crime.
Victim of the crime
The above-mentioned acts of the offender that commit the crime of Defamation infringe upon the honor, dignity, or other legitimate rights and interests of a citizen
The subjective element of the crime
That the offender commits such a crime intentionally, with the purpose of offending the honor of others, is an essential element that constitutes the crime of Defamation.
Capacity of the offender
Any person with the capacity for criminal responsibility, having the appropriate age as prescribed by the laws, is deemed to have the capacity to commit Defamation. In addition, the offender must be a person who is 16 years old or above.
To summarize, defamatory actions will only be considered for criminal prosecution if they were intended to offend the honor of others or were intended to result in the infringement of the legitimate rights and interests of others. If defamatory actions do not rise to the level of criminal liability, an administrative penalty may be imposed. For instance, as prescribed in Article 101.1(a) of Decree No. 15/2020/ND-CP, a fine of between VND5,000,000 to VND10,000,000 may be levied for abusing social networking to provide or share fake or false information with the aims of distorting, slandering or damaging the prestige, honor and dignity of other organizations, authorities or individuals.
Regulations in Vietnam on Bad-Mouthing
In Vietnamese dictionary, bad-mouthing means ‘saying something negative about others behind their back in order to smear or damage the reputation of others’.
According to the regulations of Vietnam, the act of bad-mouthing the prestige and honor of an individual is prescribed in Article 34.1 of the Civil Code 2015 as follows: ‘(The) Honor, dignity, and prestige of an individual are inviolable and protected by the laws’. If bad-mouthing actions do not rise to the level of criminal liability, an administrative penalty may be imposed as prescribed in Article 5.1(a) of Decree No. 167/2013/ND-CP. Specifically, a warning or a fine of between VND100,000 to VND300,000 may be levied for one of the following acts: use of gestures, harsh words, provocations, teasing, and insults to offend the honor and dignity of others. Under Article 34.5 of the Civil Code 2015, the individual whose honor, dignity or reputation is adversely affected by a piece of information has the right to request the rejection of such information and request the person spreading such information to make a public apology and rectification, and compensate for damage. Decree No. 167/2013/ND-CP also regulates a public apology made upon a victim’s request in cases of offending honor and dignity of family members, or of the person who prevents, detects or reports domestic violence, helps the victim of domestic violence.
Practical handling measures of Defamation and Bad-Mouthing by Vietnamese Courts
To better understand how cases involving defamation are handled in practice, it is necessary to perform an analysis of actual cases published by the Supreme People’s Court about this type of crime. The following is a breakdown of some of the typical rulings:
Summary of the first-instance criminal judgment No. 66/2018/HSST dated October 25, 2018, of the People’s Court of Thanh Chuong District, Nghe An Province:
Ms. Nguyen Thi H (Ms. H) was a teacher of A Secondary School who knew Mr. Nguyen Dinh H (Mr. NDH)– Mrs. Nguyen Thi H’s (Mrs. NTH) husband. Because of family conditions, Ms. H wanted to move her work closer to home. She knew that Mr. NDH had acquaintances working in the field of education, so she decided to ask him for help. On about 9:30pm on March 25, 2018, Ms. H called to Mr. NDH’s number to inquire about the situation. Mr. NDH had left his phone at home so Mrs. NTH (NDH’s wife) picked up the phone to listen. Hearing that the listener was a woman, Ms. H turned off the phone. Mrs. NTH suspected that Ms. H was in a relationship with Mr. NDH, so Mrs. NTH called Ms. H back on her husband’s phone but she did not answer. Mrs. NTH then took her phone and called Ms. H’s number and asked ‘Who are you to call to my husband’s number?’ Fearing that Mrs. NTH misunderstood her relationship with Mr. NDH, Ms. H told Mrs. NTH, ‘I am a telephone charge collector, please help tell Mr. NDH to pay the phone bills’.
Because of continued doubts about her husband, Mrs. NTH researched the phone number and found out that the owner of the phone number had a Facebook account under the name of Nguyen Phuong H and further discovered that it was Ms. H who was working at A Secondary School. At around 8pm on April 8, 2018, Mrs. NTH used a Facebook account named Nguyen Ngoc HM to download a photo of Ms. H with her family and colleagues and post them online with the comment ‘offend Ms. H’s honor’. After that, Mrs. NTH continued to post the information and such images on the Anh SNC Facebook and circulated Ms. H’s face to everyone she knew. Then, at 10:37pm on the same day, Mrs. NTH repeatedly posted the above images with the comment ‘contents that offend Ms. H’s honor’. On April 12, 2018, through her sister Nguyen Thi N, Mrs. NTH filed a complaint about Ms. H’s alleged adultery with her husband with the Education Department of KS District, NA. The investigation and verification process showed that Ms. H only had an acquaintance relationship with Mr. NDH. There were no grounds to prove that Ms. H and Mr. NDH had an affair as Mrs. NTH claimed.
On April 22, 2018, Ms. H filed a claim with the Police Investigation Division of Thanh Chuong District requesting criminal prosecution based upon Mrs. NTH’s behavior.
At the trial, Ms. H asked the court to sentence the defendant in accordance with the laws. Regarding civil liability, Ms. H requested the defendant Mrs. NTH pay VND13,900,000 in damages; travel expenses for working with the investigation agency amounting to 10 trips x VND100,000/1 trip = VND1,000,000; and taxi rental for working with the investigation agency amounting to 10 trips x VND150,000,000/1 trip = VND1,500,000. Ms. H’s total claim for compensation was VND16,400,000.
Indictment No. 60/CT-VKS – HS dated September 19, 2018, of the People’s Procuracy of Thanh Chuong District, Nghe An Province prosecuted Mrs. NTH for “Defamation” as prescribed in Article 156.2(e) of the Criminal Code 2015.
At the trial, representatives of the People’s Procuracy of Thanh Chuong District, Nghe An Province requested the trial panel to declare the defendant Mrs. NTH guilty of “Defamation” pursuant to the followings: Article 156.2(e); points i, s of Clauses 1, 2 of Article 51, Article 65 of the Criminal Code 2015; and Article 106, Article 136.2. of the Criminal Procedural Code 2015. Following the trial, Mrs.
NTH was found guilty and sentenced to probation from 12 to 15 months, with the period under challenge from 24 to 30 months. However, the Defendant was not ordered to pay monetary compensation to Ms. H. The defendant was subject to first-instance criminal charges as prescribed.
Defendant Mrs. NTH admitted her criminal acts as specified in the indictment and did not argue with the representative of the Procuracy. However, she did ask the trial panel to reduce the penalty and allow the defendant to have reduce probation.
Taking into account the facts and the ruling in this case, it can be seen that defendant Mrs. NTH, based on vague information concerning Ms. H and her husband, fabricated information on Facebook that affected honor and dignity of the victim. Further, the defendant’s actions satisfied the elements that constitute defamation as she intentionally performed the crime with the purpose of offending the honor of others. It should be noted that, the courts in Vietnam have issued similar judgments and sanctions related to this type of accusation based upon Article 156 of the Criminal Code 2015. The severity of the actual sentence will vary depending on a case-by-case analysis of each incident by the Court.
Bad-mouthing towards others
An individual who is bad-mouthed can sue for out-of-contract damages to protect their honor, dignity, and prestige. These cases are quite common and the Vietnamese courts rely upon Article 34 of the Civil Code 2015 to handle and resolve such claims. Below is an extract from judgment No. 43/2017/DS-ST, dated September 26, 2017, regarding a ‘Dispute on liability for damages caused by the violations against honor, dignity, and reputation’ of the People’s Court of Tanh Linh District of Binh Thuan Province:
Around January 2007, Mrs. H filed a claim with the People’s Committee of Commune D to present the suspicion that Mrs. K had an illicit relationship with Mrs. H’s husband. Following this, in April 2007, the same People’s Committee of Commune D received a request from Mrs. K to resolve Mrs. H’s offense to Mrs. K’s honor caused by the accusations. On April 10, 2007, the reconciliation board, chaired by Mr. Ho Thanh T – Chairman of the People’s Committee of Commune D, invited the parties for mediation. Subsequent to the presentation of the parties, the reconciliation board analyzed and concluded that: Mrs. H’s suspicion that her husband had an illicit relationship with Mrs. K was groundless. As a result, the board forced the relevant informants to apologize to Mrs. K and the husband. Further, Mrs. H was asked to apologize to Mrs. K and to heal her relationship with her husband and preserve the family’s happiness. Mrs. H was not happy with the result of reconciliation and appealed the matter on August 31, 2008 to the representative union. However, through the efforts of the representative unions of Commune D and the education sector (where Mrs. H worked), the matter appeared to have been resolved in 2008
However, on April 15, 2017, one day before the wedding of Mrs. K’s child, Mrs. H posted information about these previous conflicts on Mrs. H’s Facebook page and then failed to control the spread of the information. When she discovered the postings, Mrs. K was mentally affected and had to ask leave from her work for some time. Although Mrs. H said that the information she posted on the Facebook page on April 15, 2017 did not specifically name Ms. K, the comments from users about the incident between the two families in the past specifically referred to Mrs. K by name. In addition, while Mrs.
H admitted that the posting of information on the Facebook page was wrong she made another post on April 25, 2017 stating that ‘Everyone has my school’s Facebook so they see what I posted, no need you to inform anymore’. This proved that the false information had spread.
Mrs. H’s posting of information relating to Mrs. K on her Facebook page on April 25, 2017, along with the actual comments without Mrs. K’s consent, infringed on Mrs. K’s reputation and dignity. It also infringed upon her right to a private life, and her right to keep personal secrets and the family secrets as stipulated in Article 38 of the Civil Code 2015. Further, it violated prohibitions in Article 5(d) of the Government’s Decree No. 72/2013/ND-CP dated July 15, 2013, guiding the management, provision, and usage of Internet services and information on the Internet. Finally, according to Article 34.1 of the Civil Code 2015, ‘The honor, dignity, and prestige of individuals are inviolable and protected by law’. Therefore, Mrs. K filed a lawsuit demanding that Mrs. H publicly apologize at Commune D where she lived and worked, and publicly rectify the information that Mrs. H posted on her Facebook page. This was considered an appropriate demand under Article 34.5 and Article 592 of the Civil Code 2015 and was accepted.
The court agreed with Mrs. K’s demands and forced Mrs. H to publicly apologize to Mrs. K at Commune D where Mrs. K lived and worked. Mrs. H was also ordered to publicly rectify the information related to Mrs. K that was posted on Mrs. H’s Facebook page.
In this case, the decision applied Article 34 and Article 592 of the Civil Code 2015, which are the common provisions that Vietnamese courts often utilize in disputes for non-contractual damages related to honor, dignity, and prestige. Further, the person whose rights are infringed often uses these provisions when filing a claim at court to protect his/her rights.
Based on facts and rulings of the civil and criminal judgments above, (involving two acts of offending the dignity of others on Facebook), the question arises as to why one of such acts was prosecuted as a criminal offense while the other one was resolved as a civil case. Distinguishing between these two forms of offenses will assist those who are defamed and bad-mouthed choose the appropriate option prior to filing a claim. When reviewing civil judgment No. 43 concerning the case between Mrs. H and Mrs. K, the facts show that Mrs. H posted the information on Facebook and could not control the spread of such information. While the spread of such information offended Mrs. K’s honor, it was based upon the truth and therefore does not satisfy the elements constituting defamation. According to the above analysis, one of the factors that constitutes defamation is the fabrication and spread of untrue information to offend the honor and dignity of others.