Nghị định 90/2008/ND-CP

DECREE

AGAINST SPAM

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 29, 2006 Law on Information Technology;

Pursuant to the November 29, 2005 Law on E-Transactions;

Pursuant to the May 25, 2002 Ordinance on Post and Telecommunications;

Pursuant to the November 16. 2001 Ordinance on Advertisement;

Pursuant to the July 2, 2002 Ordinance on Sanctioning of Administrative Violations and the April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Sanctioning of Administrative Violations;

At the proposal of the Minister of Information and Communication,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree provides for the fight against spam; and rights and obligations of concerned agencies, organizations and individuals (below collectively referred to as organizations and individuals).

Article 2.- Subjects of application

This Decree applies to organizations and individuals related to email and message exchange services in Vietnam.

In case an anti-spam treaty to which Vietnam is a contracting party contains provisions different from those of this Decree, the provisions of the treaty shall be applied.

Article 3.- Interpretation of terms

For the purpose of this Decree, the terms below are construed as follows:

1. Spam means an electronic mail or text message sent to a sender who does not want or has no duty to receive it according to law. In this Decree spam includes electronic mail spam and text message spam.

2. Data message means information created, sent, received and stored by means of electronic devices.

3. Information infrastructure means a system of equipment serving the production, transmission, collection, processing, storage and exchange of digital information, including telecommunications networks, the Internet, computer networks and databases.

4. Electronic mail means a data message sent to one or more than one electronic mail address through information infrastructure.

5. Electronic address means an address used to receive or send data messages through information infrastructure.

6. Electronic mail address means an address used to send or receive electronic mails, which consists of a user name and an Internet domain name.

7. Text message means a data message sent to a mobile phone, a pager or a device with a text message-receiving function.

8. Header of an electronic mail means information attached to the content of an electronic mail, including information on the origin, destination, route, subject matter and other information on the electronic mail.

9. Subject matter of an electronic mail means part of the header showing the principal content of the electronic mail.

10. Header of a text message means information attached to the content of a text message, including, but not limited to, the origin and time of sending of the text message.

11. Advertising electronic mail or text message means an electronic mail or a text message aiming to introduce organizations and individuals engaged in business or social activities, goods or services, including services provided for profit and not for profit, to consumers.

12. Advertiser means an organization or individual wishing to advertise its/his/her business activities, goods or services.

13. Advertisement service provider means an organization providing the service of sending advertising electronic mails or text messages to recipients.

14. Management code means a code issued by the Ministry of Information and Communication to an electronic mail or text message advertisement service provider or an Internet-based text messaging service provider when it accepts the registration dossier of such provider.

15. Product code means a code assigned to each product by an advertisement service provider. A product code may consist of information on a category of advertising products for classification purpose.

16. Owner of an electronic address means a person who has created or has been granted such

electronic address.

Article 4.- Contents and responsibilities of state management of the fight against spam

1. Contents of state management of the fight
against spam

a/ Formulating, promulgating, propagating, disseminating, and organizing the implementation of, legal documents and technical regulations against spam;

b/ Propagating the sense and duty of preventing and fighting spam among users and other entities;

c/ Summing up and publicly announcing spamming sources;

d/ Assuming the prime responsibility for. and coordinating with concerned units in, handling spam;

e/ Receiving notices and complaints about spam;

f/ Receiving registration dossiers and issuing management codes to electronic mail and text message advertisement service providers and Internet-based text messaging service providers;

g/ Undertaking international cooperation against spam;

h/ Studying and applying anti-spam measures:

i/ Managing statistics on spam;

j/ Inspecting, examining, settling complaints, denunciations and handling violations.

2. The Ministry of Information and Communication shall assume the prime responsibility for. and coordinate with concerned ministries and ministerial-level agencies in. performing the state management of the fight against spam.

3. Other ministries and ministerial-level agencies shall coordinate with the Ministry of Information and Communication in the fight against spam.

Article 5.- Classification of spam

1. Electronic mails and text messages for the purposes of deception, harassment or spreading computer viruses and harmful software or violating Clause 2. Article 12 of the Law on Information Technology.

2. Advertising electronic mails or text messages in violation of the principles of sending advertising electronic mails or text messages stipulated in Articles 7,9 and 13 of this Decree.

Article 6.- Prohibited acts

1. Spamming.

2. Distorting header information of electronic mails or text messages for spamming purposes.

3. Creating conditions for or permitting the use of one's own electronic devices for sending or forwarding spam.

4. Exchanging, buying, selling or spreading software for gathering electronic addresses or the right to use such software.

5. Using software to gather electronic addresses without consent of owners of such electronic addresses.

6. Exchanging, buying and selling lists of electronic addresses or the right use lists of electronic addresses for spamming purposes.

7. Other acts of violation as provided for by law.

Chapter II

SENDING OF ADVERTISING ELECTRONIC MAILS AND TEXT MESSAGES

Section I. GENERAL PRINCIPLES

Article 7.- Principles of sending advertising electronic mails and text messages

1. Organizations and individuals, except advertisement service providers, may only send advertising electronic mails or text messages after obtaining prior consent of recipients.

2. Advertisement service providers may only send advertising electronic mails or text messages until recipients opt out of further advertising electronic mails or text messages.

3. Within 24 hours after receiving an opt-out request, an advertiser or advertisement service provider shall stop sending advertising electronic mails or text messages that have been opted out of by recipients, except in force majeure cases.

4. Advertisement service providers may only send advertising electronic mails or text messages from systems with technical information already registered with the Ministry of Information and Communication.

5. Electronic mail advertisement service providers may not send more than 5 advertising electronic mails to a single electronic mail address within 24 hours, unless otherwise agreed upon with recipients.

6. Text message advertisement service providers may not send more than 5 advertising text messages to a telephone number within 24 hours and may only send them from 7:00 hrs. to 22:00 hrs. a day, unless otherwise agreed upon with recipients.

Article 8.- Principles of gathering and using electronic addresses for advertisement purposes

1. Electronic addresses may only be gathered for advertisement purposes upon the consent of owners of such electronic addresses.

2. The purpose and scope of use must be clearly stated when gathering electronic addresses.

3. Electronic addresses must be used for the purpose and within the scope already permitted by owners of such electronic addresses.

Section 2. ADVERTISING ELECTRONIC MAILS

Article 9.- Requirements on advertising electronic mails

1. The subject matter must match the content, and the advertising content must comply with the advertisement law.

2. An advertising electronic mail must be marked under Article 10 of this Decree

3. There must be information on the advertiser under Clauses 1 and 3, Article 11 of this Decree.

4. In case of using an advertisement service, there must be additional information on the advertisement service provider under Clauses 2 and 3. Article 11 of this Decree.

5. There must be an opt-out function under Article 12 of this Decree.

Article 10.- Provisions on marking of advertising electronic mails

1. All electronic mails must be marked.

2. A mark shall be placed at the beginning of the subject line.

3. A mark may take one of the following form:

a/ [QC] or [ADV], for electronic mails sent from an advertiser:

b/ |QC Management code] or [ADV Management code]. for electronic mails sent from an advertisement service provider. Management code is defined under Clause 14. Article 3 of this Decree.

Article 11.- Provisions on information on electronic mail advertisement service providers and electronic mail advertisers

1. Information on an advertiser includes name, telephone number, electronic mail address, geographical address and website address (if any).

2. Information on an advertisement service provider includes name, telephone number, electronic mail address, geographical address, website address, management code and product code (if any).

3. Information on an electronic mail advertisement service provider or electronic mail advertiser must be clearly displayed and placed immediately before opt-out information that permits recipients to decline to receive advertising electronic mails.

Article 12.- Provisions on the function to opt out of advertising electronic mails

1. Opt-out information that permits recipients to decline to receive advertising electronic mails must meet the following conditions:

a/ It is placed at the end of an advertising electronic mail and expressed clearly and conspicuously in Vietnamese and English:

b/There must be information confirming that recipients have a right to decline all products from the advertiser. In case of using an advertisement service, there must be information confirming that recipients have a right to decline all advertising products from the advertisement service provider;

c/ When necessary, an electronic mail advertisement service provider may provide an additional opt-out ability, such as declining a product or a group of products;

d/ There must be clear guidance on the levels of opt-out under Points b and c, Clause 1. and forms of opt-out under Clause 2 of this Article.

2. Forms of opt-out of advertising electronic mails must include:

a/ Opting out via the website;

b/ Opting out by electronic mail;

c/ Opting out by telephone.

3. Upon receiving an opt-out request, the advertiser or advertisement service provider shall immediately send information confirming receipt of the opt-out request and. within 24 hours, stop sending the type of opted-out advertising electronic mails to the recipient concerned, except in force majeure cases.

4. Confirmation information must ensure the following requirements:

a/There is information confirming receipt of an opt-out request, the time of receipt of the request and the deadline for stopping sending advertising electronic mails;

b/ It must be successfully sent only once and contain no advertising information.

5. Advertisement service providers shall pay all expenses related to the use of the opt-out function by recipients.

Section 3. ADVERTISING TEXT MESSAGES

Article 13.- Requirements on advertising text messages

1. An advertising text message must be marked under Article 14 of this Decree.

2. In case of using the advertisement service, there must be additional information on the advertisement service provider under Article 15 of this Decree.

3. There must be an opt-out function under Article 16 of this Decree.

Article 14.- Provisions on marking of advertising text messages

1. All advertising text messages must be marked.

2. A mark shall be placed at the beginning of the content of a text message.

3. A mark may take one of the following forms:

a/ [QC] or [ADV], for text messages sent from an advertiser:

b/ [QC Management code] or [ADV Management code], for text messages sent from an advertisement service provider. Management code is denned under Clause 14. Article 3 of this Decree.

Article 15.- Provisions on information on text message advertisement service providers

1. Information on a text message advertisement service provider includes the management code and product code (if any).

2. Information on a text message advertisement service provider is placed in the marked content under Clause 3, Article 14 of this Decree.

Article 16.- Provisions on the function to opt out of advertising text messages

1. Information permitting recipients to decline to receive advertising text messages must meet the following conditions:

a/ It is placed at the end of an advertising text message and clearly displayed in Vietnamese;

b/ There must be a confirmation that recipients have a right to decline ail products from the advertiser. In case of using an advertisement service, there must be information confirming that recipients have a right to decline all advertising products from the advertisement service provider:

c/ When necessary, a text message advertisement service provider may provide an additional opt-out ability, such as declining a product or a group of products;

d/ There must be clear guidance on the levels of opt-out under Points b and c. Clause 1, and forms of opt-out under Clause 2 of this Article.

2. Forms of opting out of advertising text

messa2es must include: a/ Opting out by text messaging: b/ Opting out by telephone:

3. Upon receiving an opt-out request, the advertiser or advertisement service provider shall immediately send information confirming receipt of the request and. within 24 hours, stop sending the type of opted out advertising text messages to the recipient concerned, except in force majeure cases.

4. Confirmation information must ensure the following requirements:

a/ There is information confirming receipt of an opt-out request, the time of receipt of the request and the deadline for stopping sending advertising text messages;

b/ It must be successfully sent only once and contain no advertising information.

5. Advertisement service providers shall pay all expenses related to the use of the opt-out function by recipients.

Chapter III

EXCHANGE OF ELECTRONIC MAILS AND TEXT MESSAGES

Section 1. EXCHANGE OF ELECTRONIC MAILS

Article 17.- Organizations and individuals sending electronic mails and organizations and individuals using electronic mail advertisement services

1. All organizations and individuals may send electronic mails as they wish in accordance with the provisions of this Decree and other relevant provisions.

2. In case recipients agree to receive advertising electronic mails, senders of advertising electronic mails shall observe the provisions of Article 9 of this Decree.

3. When using an electronic mail advertisement service, advertisers may only use the service provided by an electronic mail advertisement service provider possessing a management code issued by the Ministry of Information and Communication.

Article 18.- Electronic mail advertisement service providers

1. An electronic mail advertisement provider shall meet the following conditions:

a/ Having a website with a Vietnam-based server used for sending advertising electronic mails and using the Vietnamese nation domain name ".vn";

b/ Having a system for receiving and processing recipients' opt-out requests under Article 12 of this Decree;

c/ Possessing a management code issued by the Ministry of Information and Communication.

2. Process and procedures for the issuance of management codes:

a/ Organizations and individuals shall submit registration dossiers to the Ministry of Information and Communication;

b/ A registration dossier must contain sufficient information on the organization or individual providing the electronic mail advertisement service and technical information in accordance with the required conditions specified in Clause 1. Article 18 of this Decree. An application shall be made according to a form attached to this Decree (Appendix I. not printed herein);

c/ Organizations and individuals shall pay a fee for registration;

d/ Within 15 days after receiving a valid dossier, the Ministry of Information and Communication shall issue a registration; in case of refusal, it shall reply in writing, clearly stating the reason for refusal.

3. To notify in advance the Ministry of Information and Communication of any change of the system for sending advertising electronic mails.

4. To store information on opt-out requests and information on confirmation of receipt of such requests for at least 60 days.

5. To make periodical reports and statistics according to regulations of competent state agencies.

6. To collaborate with competent state agencies in implementing other operation measures as provided for by law.

Article 19.- Electronic mail service providers

1. To take public information measures to raise the awareness of service users and guide service users how to prevent and fight electronic mail spam.

2. To supply tools for service users to choose advertising electronic mails right on mailreceiving servers.

3. To take measures to prevent loss and wrong blocking of electronic mails of service users.

4. To provider free tools for receiving and processing notices of electronic mail spam from users.

5. To supply information relating to the conditions of the system of electronic mail servers at the request of competent state agencies.

6. To take measures to prevent electronic mail spam at the request of competent stale agencies.

7. Not to provide the electronic mail service to electronic mail advertisement service providers that have no management code issued by the Ministry of Information and Communication.

8. To store header information of electronic mails for at least 60 days.

9. To make periodical reports and statistics according to regulations of competent state agencies.

10. To collaborate with competent state agencies in implementing other operation measures as provided for by law.

Article 20.- Internet access service providers

1. To take public information measures to raise the awareness of service users and guide service users how to prevent and fight electronic mail spam.

2. To provide free mechanisms for receiving and processing notices of electronic mail spam from users.

3. To provide information on and prevent spamming sources at the request of competent state agencies.

4. To collaborate with domestic and international Internet service providers in restricting electronic mail spam.

5. To take measures to prevent electronic mail spam at the request of competent state agencies.

6. To collaborate with competent state agencies in implementing other operation measures as provided Cor by law.

Article.21.- Electronic mail users

1. To observe the provisions of this Decree regarding sending of electronic mails.

2. To supply information on electronic mail spam to electronic mail service providers, Internet service providers and competent state agencies.

3. To collaborate with competent state agencies in fighting electronic mail spam.

Section 2. EXCHANGE OF TEXT MESSAGES

Article 22.- Organizations and individuals sending text messages and organizations and individuals using text message advertisement services

1. All organizations and individuals may send text messages as they wish in accordance with the provisions of this Decree and other relevant provisions.

2. In case recipients consent to receive advertising text messages, senders of advertising text messages shall observe the provisions of Article 13 of this Decree.

3. When using a text message advertisement service, advertisers may only use the service provided by a text message advertisement service provider possessing a management code issued by the Ministry of Information and Communication.

Article 23.- Text message advertisement service providers

1. A text message advertisement service provider shall meet the following conditions:

a/ Using subscription numbers which are issued by a Vietnamese text messaging service provider for sending advertising text messages:

b/ Having a system for receiving and processing recipients' opt-out requests under Article 16 of this Decree;

c/ Possessing a management code issued by the Ministry of Information and Communication.

2. Process and procedures for the issuance of management codes:

a/ Organizations and individuals shall submit registration dossiers to the Ministry of Information and Communication;

b/A registration dossier must contain sufficient information on the organization or individual providing the text message advertisement service and technical information in accordance with the required conditions specified in Clause 1, Article 23 of this Decree. An application shall be made according to a form attached to this Decree

(Appendix II. not printed herein);

c/ Organizations and individuals shall pay a fee for registration;

d/ Within 15 days after receiving a valid dossier, the Ministry of Information and Communication shall issue a registration; in case of refusal, it shall reply in writing, clearly stating the reason for refusal.

3. To notify in advance the Ministry of Information and Communication of any change of the system for sending advertising text messages.

4. To store information on opt-out requests and information confirming receipt of such requests for at least 60 days.

5. To make periodical reports and statistics according to regulations of competent state agencies.

6. To coordinate with competent state agencies in implementing other operation measures as provided for by law.

Article 24.-Text messaging service providers

1. To take public information measures to raise the awareness of service users and guide service users how to prevent and fight text message spam.

2. To provide free tools for receiving and processing notices of text message spam from users.

3. To provide information relating to the conditions of the text messaging system at the request of competent state agencies.

4. To take measures to prevent text message spam at the request of competent state agencies.

5. Not to provide the text messaging service to text message advertisement service providers that have no management code issued by the Ministry of Information and Communication.

6. To take measures to restrict the number, speed and frequency of text messaging from a single service user.

7. To collaborate with domestic and foreign text message service providers in preventing text message spam.

8. To make periodical reports and statistics according to regulations of competent state agencies.

9. To coordinate with competent state agencies in implementing other operation measures as provided for by law.

Article 25.- Internet-based text messaging service providers

1. Organizations and individuals providing the Internet-based text messaging service-must meet the following conditions:

a/ Having a website with the Vietnamese nation domain name ".vn"; and Vietnam-based servers for sending text messages;

b/ Having a system for receiving and processing requests not to receive text messages sent from one or more than one service user;

cl Possessing a management code issued by the Ministry of Information and Communication.

2. Process and procedures for the issuance of management codes:

a/ Organizations and individuals shall submit registration dossiers to the Ministry of Information and Communication;

b/ A registration dossier must contain sufficient information on the organization or individual providing the Internet-based text messaging service and technical information in accordance with the required conditions specified in Clause 1 of this Article. An application shall be made according to a form attached to this Decree (Appendix III, not printed herein);

c/ Organizations and individuals shall pay a fee for registration;

d/ Within 15 days after receiving a valid dossier, the Ministry of Information and Communication shall issue a registration. In case of refusal, it shall reply in writing, clearly stating the reason for refusal.

3. To provide free mechanisms for receiving and processing notices of text message spam from users.

4. To take measures to restrict the number, speed and frequency of text messaging from a single service user.

5. To take measures to prevent text message spam at the request of competent state agencies.

6. To make periodical reports and statistics according to regulations of competent state agencies.

7. To collaborate with competent state agencies in implementing other operation measures as provided for by law.

Article 26.- Text message users

1. To observe the provisions of this Decree regarding sending of text messages.

2. To supply information on text message spam to text messaging service providers, Internet-based text messaging service providers and competent state agencies.

3. To collaborate with competent state agencies in fighting spam.

Chapter IV

COMPLAINTS, DENUNCIATIONS AND HANDLING OF VIOLATIONS

Article 27.- Settlement of disputes

Disputes between parties in the provision and use of public electronic mail and text message advertisement services shall be settled on the basis of contracts between parties and relevant provisions of law.

Article 28.- Complaints, denunciations and settlement of complaints and denunciations

1. Organizations and individuals that are sanctioned for spam-related violations or their lawful representatives may lodge complaints about sanctioning decisions issued by competent persons. Pending the settlement of their complaints by competent state agencies, sanctioned organizations or individuals shall still comply with sanctioning decisions.

2. Citizens may denounce to competent agencies, organizations or persons spam-related violations in accordance with the law on complaints and denunciations.

3. Citizens may denounce to competent agencies, organizations or persons illegal acts of persons competent to sanction spam-related administrative violations.

4. The competence, procedure, order and time limits for lodging complaints and denunciations and settling complaints and denunciations, and for initiating administration lawsuits comply with the provisions of law.

Article 29.- Compensation for damage

1. Organizations and individuals that send spam causing damage to other organizations and individuals shall pay compensation for such damage.

2. The level of compensation shall be agreed upon by the spamming and damaged parties in accordance with the principles prescribed by law. In case they cannot negotiate and reach any agreement, the level of compensation shall be decided by the court.

Article 30.- Inspection and examination

1. Organizations and individuals providing and using electronic mail and text message advertisement services shall place themselves under the inspection and examination by competent state agencies in accordance with law.

2. The inspection of organizations and individuals involved in the management, provision and use of electronic mail and text message advertisement services shall be conducted in accordance with the law on inspection.

Article 31.- Competence of the specialized information and communication inspectorate to sanction spam-related administrative violations

1. Specialized information and communication inspectors on duty have the power:

a/ To issue cautions;

b/ To impose fines of up to VND 500,000;

c/To confiscate material evidence and means used in administrative violations which are valued at up to VND 2,000,000;

d/ To apply remedies specified in Clauses 3 and 4, Article 43 of this Decree;

e/ To exercise the powers defined at Item 2, Clause 19, Article 1 of Ordinance No. 44/2008/ UBTVQH12 Amending and Supplementing a Number of Articles of the 2002 Ordinance on Sanctioning of Administrative Violations.

2. Chief inspectors in provincial-level Information and Communication Services have the power:

a/ To issue cautions;

b/ To impose fines of up to VND 30,000,000;

c/To confiscate material evidence and means used in administrative violations;

d/ To apply remedies specified in Clauses 1, 3, 4 and 5, Article 43 of this Decree;

e/ To exercise the powers defined at Item 1, Clause 19. Article 1 of Ordinance No. 44/2008/UBTVQH12 Amending and Supplementing a Number of Articles of the 2002 Ordinance on Sanctioning of Administrative Violations.

3. The chief inspector of the Ministry of Information and Communication has the power:

a/To issue cautions:

b/ To impose fines of up to VND 100,000.000;

c/To confiscate material evidence and means used in administrative violations;

d/ To apply remedies specified in Clauses 1, 2, 3, 4, 5 adn 6, Article 43 of this Decree;

e/ To. exercise the powers defined at Item 1, Clause 19. Article 1 of Ordinance No. 44/2008/ UBTVQH12 Amending and Supplementing a Number of Articles of the 2002 Ordinance on Sanctioning of Administrative Violations.

Article 32.- Sanctioning competence of other specialized inspectorates

Within the ambit of their state management competence stipulated by the Government, inspectors and chief inspectors of other specialized inspectorates have the power to sanction spam-related administrative violations in accordance with law.

Article 33.- Sanctioning competence of People's Committees at all levels

Presidents of People's Committees at all levels have the powers to sanction spam-related administrative violations specified in this Decree and in the localities under their management according to their powers defined in Article 30 of the 2002 Ordinance on Sanctioning of Administrative Violations, and Clauses 4 and 5,

Article 1 of Ordinance No. 44/2008/UBTVQH12 Amending and Supplementing a Number of Articles of the 2002 Ordinance on Sanctioning of Administrative Violations.

Article 34.- Violations of regulations on management and use of electronic mails and text messages

1. A caution or a fine of between VND 100,000 and VND 200,000 shall be imposed for the following acts:

a/ Failing to clearly state the purpose and scope of using electronic addresses when gathering them;

b/ Users of electronic mail, text message or Internet-based text message services failing to collaborate with competent state agencies in fighting spam.

2. A fine of between VND 200,000 and VND 500,000 shall be imposed for acts of gathering electronic addresses for advertisement purposes without the consent of their owners.

3. A fine of between VND 1,000,000 and VND 2,000,000 shall be imposed for the following acts:

a/ Using gathered electronic mail addresses for purposes other than those or beyond the scope already permitted by their owners:

b/ Distorting header information of electronic mails or text messages.

4. A fine of between VND 5,000,000 and VND 10.000.000 shall be imposed for acts of creating conditions for or permitting others to use one's electronic devices for sending or forwarding spam.

5. A fine of between VND and VND 40.000.000 shall be imposed for the following acts:

a/ Exchanging, buying, selling or spreading software to gather electronic addresses or the right to use such software;

b/ Using software to gather electronic addresses without the consent of their owners;

c/ Exchanging, buying or selling lists of electronic addresses or the right to use such lists for spamming purposes.

Article 35.- Violations of regulations on marking

A fine of between VND 10,000,000 and VND 20.000.000 shall be imposed for the following

acts:

1. Marking advertising electronic mails improperly or insufficiently under Clauses 2 and 3, Article 10 of this Decree;

2. Marking advertising text messages improperly or insufficiently under Clauses 2 and 3. Article 14 of this Decree.

Article 36.- Violations of regulations on the function to opt out of advertising information

1. A fine of between VND 2,000,000 and VND 5,000,000 shall be imposed for the following acts:

a/ Sending advertising electronic mails without information permitting recipients to opt out of advertising electronic mails or with such information which, however, fails to meet all conditions specified in Clause 1. Article 12 of this Decree:

b/ Sending advertising text messages without information permitting recipients to opt out of advertising text messages or with such information which, however, fails to meet all conditions specified in Clause 1. Article 16 of this Decree.

2. A fine of between VND 20,000,000 and VND 50,000,000 shall be imposed, for the following acts:

a/ Providing text message advertisement services without sufficient forms of receipt and processing of opt-out requests under Clause 2, Article 16 of this Decree;

b/ Providing electronic mail advertisement services without sufficient forms of receipt and processing of opt-out requests under Clause 2. Article 12 of this Decree.

3. A fine of between VND 60,000,000 and VND 80,000,000 shall be imposed for the following acts:

a/ Providing text message advertisement services without a system for receiving and processing recipients' opt-out requests:

b/ Providing electronic mail advertisement services without a system for receiving and processing recipients' opt-out requests;.

c/ Providing Internet-based text messaging services without a system for receiving and processing recipients' opt-out requests.

Article 37.- Violations of regulations on conditions on provision of electronic mail and text message advertisement services

1. A fine of between VND and VND

2.000.000 shall be imposed for failure to take public information measures to raise the awareness of service users and guide service users how to prevent and fight spam.

2. A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for the following acts:

a/ Failing to store header information for at least 60 days;

b/ Failing to store information on opt-out requests and information confirming receipt of such requests for at least 60 days.

3. A fine of between VND 10,000,000 and VND 30.000,000 shall be imposed for the following acts:

a/ Failing to supply tools for service users to choose advertising electronic mails right on mail-receiving servers;

b/ Failing to provide free mechanisms for receiving and processing notices of spam;

cl Failing to take measures to prevent loss and wrong blocking of electronic mails of service users;

d/ Failing to collaborate with domestic and foreign Internet service providers and text messaging service providers in restricting spam;

e/Failing to send within 24 hours information confirming receipt of opt-out requests from recipients of advertising electronic mails or text messages;

f/ Sending information confirming receipt of requests not to receive advertising electronic mails which fails to ensure requirements specified in Clause 4. Article 12 of this Decree:

g/ Sending information confirming receipt of requests not to receive advertising text messages which fails to ensure requirements specified in Clause 4, Article 16 of this Decree;

h/ Failing to take measures to restrict the number speed and frequency of text messaging from a single service user.

Article 38.- Violations of regulations on sending advertising electronic mails and text messages

1. A fine of between VND 1,000,000 and VND 2,000,000 shall be imposed for the following acts:

a/ Sending advertising electronic emails containing a subject not matching the content;

b/ Information on the advertisement service provider or advertiser in advertising electronic mails failing to observe Clause 3, Article 11 of this Decree.

2. A fine of between VND 2,000,000 and VND 5,000,000 shall be imposed for the following acts

a/ Sending advertising electronic mails containing no or insufficient information on the advertiser as required in Clause 1, Article 11 of this Decree;

b/The advertisement service provider sending advertising electronic mails which contain no or insufficient information on the advertisement service provider as required in Clause 2. Article 11 of this Decree;

c/The advertisement service provider sending advertising text messages which contain no information on the advertisement service provider or contain such information which, however, fails to observe Article 15 of this Decree:

d/ Failing to stop sending advertising electronic mails or text messages which recipients request not to receive within 24 hours from the date of receipt of such requests from recipients.

3. A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for the following acts:

a/ Sending more than 5 advertising electronic mails to a single electronic mail address within 24 hours/day, unless otherwise agreed upon with recipients;

b/ Sending more than 5 advertising text messages to a subscriber within 24 hours/day or sending advertising text messages before 7:00 hrs. and after 22:00 hrs. a day, unless otherwise agreed upon with recipients;

c/ Sending advertising text messages, advertising electronic mails or Internet-based text messages with a management code different from one issued by the Ministry of Information and Communication.

4. A fine of between VND 20,000,000 and VND 40,000,000 shall be imposed for the following acts:

a/ Organizations or individuals other than advertisement service providers sending advertising electronic mails or text messages to recipients without the latter's consent;

b/ Sending advertising electronic mails or text messages from a system with technical specifications not yet registered with the Ministry of Information and Communication.

c/ Sending unmarked advertising electronic mails or text messages.

Article 39.- Violations of regulations on provision of services

1. A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for the following acts:

a/ Using a service server to send advertising electronic mails that does not use the Vietnam national domain name ".vn";

b/ Providing the service of sending advertising electronic mails and Internet-based text messages without a website using the Vietnamese national domain name ".vn".

2. A fine of between VND 20,000,000 and VND 40,000,000 shall be imposed for the following acts:

a/ Providing the electronic mail or text message advertisement service without a management code;

b/ Providing the Internet-based text messaging service without a management code;

c/ Providing the electronic mail, text message or Internet-based text message service to advertisement service providers that have no management code issued by the Ministry of Information and Communication.

2. A fine of between VND 60,000,000 and VND 80,000,000 shall be imposed for the following acts:

a/ Providing the electronic mail advertisement service from an electronic mail-sending server not based in Vietnam:

h/ Providing the Internet-based text messaging service from a text-message sending server not based in Vietnam:

cl Providing the text message advertisement service without using a subscriber number issued by a Vietnamese text message service provider for sending advertising text messages.

Article 40.- Violations of regulations on charge and fee rates

1. A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed for failure to pay charges for the provision of the opt-out function for recipients.

2. Acts of violation related to charge rates for the electronic mail or text message advertisement service stall be handled under the Government's Decree on sanctioning of administrative violations in the pricing domain.

3. Acts of violation related to charges and fees in the provision of electronic mail or text message advertisement services shall be handled under the Government's Decree on sanctioning of administrative violations in the charge and fee domain.

Article 41.- Violations of regulations on reporting, supply of information and inspection and examination

I. A fine of between VND 500,000 and VND 2,000,000 shall be imposed for the following acts:

a/ Failing to comply with the inspection and examination of competent state agencies:

b Violating reporting regulations.

2. A fine of between VND 5,000,000 and VND 10.000.000 shall be imposed for the following acts:

a/Changing the system for sending advertising text messages or electronic mails without prion notice to the Ministry of Information and Communication:

b/ Supplying insufficient on or failing to prevent spamming sources at the request of. competent state agencies;

c/ Supplying insufficient information on the conditions of the system of electronic mail and text message servers at the request of competent state agencies.

3. A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for acts of failing to supply information or supplying false information at the request of competent state agencies.

Article 42.- Violations of regulations or information safety and security

1. A fine of between VND 2,000,000 and VND 5,000.000 shall be imposed for failure to collaborate with competent state agencies in taking operation measures in accordance with law.

2. A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for failure to take measures to restrict and block spam at the request of competent state agencies.

Article 43.- Additional sanction, remedies In addition to principal sanctions, depending

on the nature and seriousness of their violations, organizations or individuals may be subject to one or more than one of the following additional sanctions or remedies:

1. Confiscation of material evidence and measures used in administrative violations specified in Clauses 4 and 5 of Article 34; Clause 3 of Article 36; Clause 4 of Article 38; and Clauses

2 and 3, Article 39 of this Decree;

2. Withdrawal of management code for acts of violation specified in Article 35: Point c. Clause

3 and Point c. Clause 4, Article 38 of this Decree.

3. Forced compliance with state regulations, for acts specified in Articles 34, 35, 36, 37, 38, 39, 41 and 42 of this Decree.

4. Forced refund of appropriated or wrongly collected sums of money, for acts of violation specified in Clause 1, Article 40 of this Decree.

5. Suspension for between one month and three months or termination of electronic mail or text message advertisement activities, for acts of violation specified at Points a and b of Clause 1, Clauses 2 and 3 of Article 36; Clauses 3 and 4 of Article 38; and Article 39 of this Decree.

Chapter V

 IMPLEMENTATION PROVISIONS

Article 44.- Implementation effect

This Decree takes effect 15 days after its publication in "CONG BAO."

Article 45.- Organization of implementation

The Ministry of Information and Communication shall, within the ambit of its functions and powers, guide the implementation of this Decree.

Article 46.- Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of People's Committees of provinces and centrally run cities shall implement this Decree.