Pressure from the fight against Coronavirus (nCoV) is escalating. Governments, including Viet Nam, are making their best effort to control activities of many fields, which are being adversely impacted by the spreading of the virus. Information, as usual, is one of the most challenging problems for the government and society, with fake news has been widely dispersed on the Internet, especially on Facebook, since the appearance of the disease. Fortunately, there have been not any significant damage recorded so far caused by such misleading information. Yet, the way people posting and sharing wrong information on social media, deliberately or not, remains a concern that needs serious attention.
Back to the middle of the year 2018, when the national assembly of Viet Nam passed the law on cybersecurity, a public debate aggressively occurred across the nation, showing concern over the right to the freedom of speech in Viet Nam. Disapproving people believe that the law may prevent them from publicly raising an opinion or transmitting some pieces of information and that the government may violate their human rights, the right to express, for specific. However, since the law was implemented, internet users have been just fine with posting and sharing things on Facebook. No severe scenario happens as predicted by people who were against the law. In fact, just few cases have been imposed monetary fines for spreading false information about the epidemic, which may interfere with the fight against the disease.
Actually, some people come with a thought that the most dangerous thing is not the cybersecurity managing manner of the government, but it turns out that the way the nature of the right to liberty of speech is perceived by several individuals. The expression is seemingly misconstrued the level of “freedom” to infinity, which means people who stand for this perception permit themselves to express anything regardless of the negative effect it may cause to their community. Article 19 of the Universal Declaration of Human Rights in 1948 recognized that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”. Certainly, referring only to this Article leads people to a thought that there is no exception to such right. As a consequence, people tend to make any statements or to share any posts that they want and sometimes with a negligent consideration about the truthfulness of shared information.
Article 19, indeed, is just a general principle that can be mutually recognized by nations without any conditions in return, and members of the United Nations shall commit to having it exercised in their territory. United Nations leaves the rule open so that countries can stipulate and apply it appropriately to their particular background. In practice, nations usually do provide exceptions to the right to the freedom of speech in their legal system. Depending on the perspective of each government and the importance of the information, exceptions are set forth to protect secrets regarding national defense, sensitive political issues, public health, public security, and order, etc. In such cases, people shall be restricted and prevented from exercising the right to express thoughts, believes, opinions, or statements.
Take the United States of America for example, its First Amendment to the Constitution provides six categories that restrain the freedom to make a speech. Such categories are incitement, fighting words, obscenity, defamation, commercial speech, and cases in which freedom of speech is outweighed by an even more compelling interest. Or, Article 10(2) of the European Convention on Human Rights states that “The exercise of these freedoms, since it carries with its duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”.
In comparison with Vietnamese laws, restrictions on the freedom of speech are generally similar to those of the U.S.A and Europe. The lawmakers aim to eliminate expressions that violate the lawful rights of other people and the interests of the State. Any speech which intends to reveal national classified information, personal secrets, or incite wars, rebellion, or to defame, insult other individuals and organizations, or to provide false information that may harm customers, community’s interests, etc. shall be firmly banned. Additionally, legal punishment against the mentioned violations varies in levels, from monetary fines to tort damages or to criminal penalties, depending on the seriousness of specific cases. For instance, making defamatory statements on the Internet shall be fined an amount from VND 20,000,000 to 30,000,000[1]. Defamed victims are also entitled to make a claim to a court for the damages if they want[2]. Furthermore, using the Internet or technology to make defamation shall be sentenced to jail up to 03 years, and if the crime leads the victim to commit suicide, the violator shall be sentenced to jail up to 07 years.[3]
Practically, it is admitted that, sometimes, considering an action whether or not falling into the exceptions to the freedom of speech is far more difficult than it is expected, even with countries that have a developed judicial system such as U.S.A or some European nations. The reason is that there is no consistent definition or measurable unit to exam whether or not a speech infringes on exceptions. In fact, the consideration and decisions regarding the foregoing issue are left for the assessment of judicial authorities on the basis of case-by-case facts, evidence, and context. Therefore, it truly requires judges and other judicial officials to have a good sense of analysis and argument to make their decisions reasonable.
In conclusion, next time, when posting or sharing any important information, especially on social media, in regard to reputation, lawful rights of other individuals, to public health and security, and to national interests, please bear this in mind, “words must be weight, not counted”[4]
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.
[1] Article 64.3 of the Decree No. 174/2013/ND-CP.
[2] Article 32.3 of the Civil Code 2015.
[3] Article 156 of the Criminal Penalty Code 2015
[4] English idiom
