Vietnam has entered the age of digitalization. Social media, already a force in the economy, is becoming an important phenomenon in the context of media, intellectual property, and information technology. However, while regulations have been gradually keeping up with this development, enforcement still lags behind. This has lead to an uncontrollable internet environment where copyright infringement, negative information, and defamation are becoming more commonplace. The purposes of those utilizing unethical tactics are often to attract an audience or enhance the status of the perpetrators, with the side effect of damaging the reputation of legitimate businesses and individuals.
The intellectual property law of Vietnam does allow some copying and use of protected content in special circumstances such as teaching, researching, and internal discussion. Under these exceptions, the users or collectors of information must still clearly indicate which authors and sources the information was obtained from. However, in most cases, the users of protected information must obtain the author’s permission (license) to use the content on a free or payable basis. Should the user not have the author’s permission, they may be prosecuted under the crimes of defamation and/or copyright infringement pursuant to the criminal law of Vietnam.
Many copyright violations or acts of defamation in Vietnam are detected by the Government and shut down. Nevertheless, one of the key reasons that the Police are unable to take fast action in several cases is due to the fact that there are very few complaints or denunciations by the victims or interested parties.
There are various ways of complaining or bringing the matter to the attention of the perpetrators and the authorities. However, the filing of a commercial lawsuit is too long and costly for most victims and, in the end, the court’s judgement may not be practically enforced. Further, making complaints to the State administrative agencies (such as the business licensing authority, the communication and information agency, or the press agency) seems less effective. This is due to the fact that these agencies do not have enough resources to perform a full investigation and enforcement, and lack manpower, technological resources, and the power of the Police to request the relevant parties to produce evidence and relevant documents, or cross-examination and verify the factual violations. Therefore, often the most effective method for victims is to file a criminal complaint or denunciation with the Police.
This Insight is to brief readers on the main points of how to file a criminal denunciation to the Police in the event of a copyright violation or defamation in Vietnam.
Step 1: Trace and collect evidence
An information technology professional will be able to help trace and collect the source of the false information or the content that was appropriated without permission, as well as the owner and relevant sources (website).
Once this information is obtained, a bailiff in the area should be notified in order to record the collected data as prima facie evidence of a violation. A bailiff is an independent legal witness service licensed by the law to assist the courts, private organizations, and individuals to record evidence of factual violations, the on-site status quo, and information located on the internet. Their records may be recognized by the courts as admissible evidence to prove the violations. The services of a bailiff are not expensive, amounting to around VND1million to VND6million for recording these types of copyright violations or other online offenses.
Step 2: A lawyer will issue a cease and desist letter to the violator
When the evidence is fully recorded and documented, it should be provided to a lawyer who will help draft a cease and desist letter to the violator demanding that the content be removed and, if applicable, request compensation for violations. In addition, the owner may also propose that the violator enters into a licensing agreement should they wish to continue using the content in exchange for a royalty.
If the violator continues to use the content, or does not remove the offending material prior to the deadline in the cease and desist order, a denunciation should be filed with the Police.
Step 3: Filing a criminal denunciation
The criminal denunciation will often include a letter of denunciation and supporting evidence proving the violation.
The letter of denunciation should contain the following:
- The information of the person or organization filing the denouncement (the plaintiff): full name, personal or business registration information (passport or identity card information, business registration certificate, etc.);
- The information of the person or party who committed the violation (the defendant): full name, personal or business registration information (this data may be obtained from the State public information portals);
- A full description of the violation (the facts related to how, when, and where the violator committed the violation, etc.);
- The damage or losses incurred to the owner or victim due to the violation (such as loss of reputation, loss of market share, future income, expenses for building content or marketing channels, lawyer fees, bailiff costs, and other incidental expenses connected to the violations;
- The legal grounds in support of the denunciation(if known). Should the owner or victim have no experience or awareness of the legal grounds for the denunciation, they may refer to either of below regulations:
- Article 156 of the 2015 Criminal Code (as amended in 2017) on slander prohibits fabricating information or spreading false information to harm another person’s reputation or infringes upon another person’s lawful rights and interests; accusing a person of a fabricated crime report it to the authorities.
- Article 225 of the 2015 Criminal Code (as amended in 2017) on infringement of copyrights and relevant rights prohibits a person or corporate who, without the consent of the holders of copyrights and relevant rights, deliberately commits any acts which infringe upon copyrights and relevant rights protected in Vietnam and earns an illegal profit.
- Article 288 of the 2015 Criminal Code (as amended in 2017) of Vietnam on the illegal provision or use of information on computer networks or telecommunications networks prohibits uploading information on a computer or telecommunications network against regulations of law; trading, exchanging, giving, changing or publishing lawfully private information of an organization or individual on the computer or telecommunications network without the consent of the information owner; other acts that involve illegal use of information on the computer or telecommunications network.
- Finally, a list of evidence is attached to the denunciation letter (the evidence that was collected in Step 1 above).
When the dossier is completed, a courier may be requested to submit the denunciation to the Police. A courier that has a return receipt service should be used.
The Police may take around 02-04 months to process the matter and invite the person who filed the denouncement to a cross-examination session to examine the facts and evidence submitted.
Following this, the Police will contact and summon the violator and other relevant parties (if any) for cross-examination and verify the facts and evidence submitted regarding the violation. Based on the statements, submitted evidence, and counter-evidence (if any) of the violator, the police will determine whether any further investigation is necessary or make a determination whether a crime has or has not been committed under the Criminal Code of Vietnam.
The most important basis utilized by the Police to conclude a crime has been committed is the evidence that was submitted by the person or organization filing the denouncement. The following evidentiary principles should be noted:
- The evidence is factually based and collected as per the sequence and formalities under the law (the 2015 Criminal Procedure Code). Evidence must contain grounds for the determination of a crime, the perpetrators of such crime, and other valuable facts for the settlement of the case.
- The Evidence has been collected and determined from these sources: exhibits; statements or presentations; electronic data; findings of expert examinations and valuations; records of legal proceedings, investigations, prosecutions, adjudications, sentence enforcements; results of judicial delegation and other international cooperation; and other documents and items.
- Each item of evidence must be inspected and evaluated to verify its validity, authenticity, and connection with the case. The verification of evidence acquired must be adequate to resolve criminal cases.
- The Police, to collect evidence, is entitled to perform activities of evidence collection under the law and to request other authorities and entities to provide evidence, documents, items, electronic data, and facts to solve the case. Other participants in legal proceedings, authorities, and entities may provide evidence, documents, items, electronic data, and related matters concerning the case. The police, when receiving evidence, documents, items, and electronic data related to the case, shall make written records of submissions and verify and assess the evidence under the law. The police, pursuant to their powers and duties, must inspect and evaluate all evidence of the case in a full, unbiased, and thorough manner.
Furthermore, attention should be given to the investigation process of the Police to ensure they have properly performed their duties under the law. The Police, when investigating, prosecuting, and hearing criminal lawsuits, must attest to:
- The existence of a crime and the time, location, and facts of the crime;
- The perpetrator of the crime; the presence of guilt and intentional or unintentional acts; the existence of criminal capacity; and the purposes and motive of the crime;
- The facts aggravating and mitigating criminal liabilities as well as the identity traits of suspects and defendants;
- The nature and severity of the damages caused by the crime
- The purposes and conditions leading to the crime; and
- Other facts are connected to the exclusion or exemption of criminal liability.
We hope our sharing is of help to you. Should you have any questions, please contact our Le & Tran criminal lawyers at email@example.com for further clarification or advice.