(Tran Thanh Phuong – Phuoc & Partners)
The proverb says that a word once spoken is past recalling to teach people to have to choose what they say very carefully, especially when they have a disagreement or a conflict with other people. Before the appearance of the Internet, when someone has a conflict with others, they will choose conflict resolution by directly saying words in attacking, disparaging, insulting, reviling to their adversaries or backbiting to discredit or humiliate their adversaries. Nowadays, through the modern technology platform and the Internet, the aforesaid conflict has been resolved through posts on social networks such as posts on Facebook or Zalo, or the live stream which is being used to defame others or even accuse someone of committing an offence. The conflict resolution through online forms features a large scale and unlimited access and comment, and a publicly broad spread of others’ stories and defects.
Live-streaming to transmit good content is always encouraged in the context of the widespread outbreak of the Covid-19 pandemic and the occurrence of the Governmental decision on social distancing. However, since the live stream features the subject of a transmitter of the content and it is difficult for competent State authorities to govern and control shared information via the live stream, so the bad content may be shared widely and commonly through such form.
Recently, social networks were broken because person A has consecutively live-streamed to publicly disclose information and facts related to person B, thus the action attracted a large number of followers. After the above information was shared, the cyber citizen was engrossed in a fierce debate to answer their curiosity whether the information is true or just fake, and person B was criticized on a huge of social networks, and then the competent State management agencies have also involved. Particularly, on 28 May 2021, the Ministry of Information and Communication issued its Official Letter No. 1800/BTTTT-PTTH&TTĐT about increasing management and process of fake information on social networks related to the live stream and other activities of posting information which is false to offend the honour and dignity of others.
People often say that the Internet in general – and social networks in particular – are a virtual society in miniature, but in fact, the impact of this type on society is real, including the real damage that its victims do suffer as well as the real responsibility that the perpetrator must take. Whether the live stream of attack against others and backbiting over social networks must face justice or not, and if so, what liability is held, is a question in which a lot of “netizens” are interested.
The live stream of attack against others and backbiting from a legal perspective
The live stream, which can be roughly translated as a live broadcast, is now known as the real-time transmission of images, sound, and voice over the Internet, which can be shared with many others at the same time and can be commented on or shared with many others by viewers. Currently, legislation has not provided a separate legal corridor for the live stream over social networks but provides only general provisions in industries, professions, and fields such as telecommunications, information technology, cybersecurity, journalism, culture, e-commerce. The live stream of attack against others and backbiting over social networks can be therefore viewed from a basic legal perspective as attacking and defaming others by producing and transmitting, storing, and exchanging information in the form of sound, voice, images, letters over the Internet.
How does the State guard honour, dignity, and prestige of an individual?
Freedom of expression is a human right that Vietnam declares to protect in its Constitution 2013. On the other hand, the Constitution of Vietnam 2013 also declares to protect the honour, dignity, and prestige of the citizens and does not allow any treatment that offends the honour, dignity, and prestige of the citizens. Thus, a citizen has the right to freedom of expression but it must perform such right without adverse impact on the honour, dignity, and prestige of others.
The Civil Code 2015 provides that “Honour, dignity, and prestige of an individual is inviolable and protected by law”[1]. Besides the legislations on information, telecommunication and cybersecurity also show the rigid attitude of State managers toward the protection of the honour, dignity, and prestige of the citizens by prohibiting acts of providing, exchanging, transmitting, and using the information on the Internet to distort, slander or offend the prestige of organisations, the honour, dignity, and the prestige of the citizens[2].
Furthermore, if a person makes an attack against others and backbiting over social networks by using supporting tools such as personal images, private life information, personal secrets, family secrets or letters, telephones, telegrams, electronic databases, or other forms of private information exchange that the victim keeps safe and confidential, these actions are considered a violation of legal regulations on personal private information protection, including the basic law as Constitution of Vietnam 2013 (Article 21), Civil Code 2015 (Article 34 and Article 38) and major laws on information and telecommunication such as the Law on Information Technology 2006 (Article 72), the Law on Telecommunications 2009 (Article 6.3 and Article 16).
However, legal terms such as “insult”, “honour”, “dignity”, “prestige” are currently not defined or explained in detail in any legal document. That the identification of an act is subject to an insult to the honour, dignity, and prestige of a person depends on the State authority and the Court based on the personal real-life experiences and knowledge of the official. In the light of the reference to some criminal judgments on crimes of humiliation and slander published on websites of the publication of court’s judgments, it seems that the judicial authorities do not intend to explain or define these terms, and only take into account the objective acts performed, the intention of the performer, the claims and damages of the victim and the infringed subject. Therefore, the State authorities are often confused in determining the violation, degree of the violation as well as the damages suffered by a victim when the above authority accepts the dispute.
The measure to request competent State authorities to handle a perpetrator
Firstly, in the civil field, any individual whose honour, dignity, and prestige are infringed has the right to request a competent Court to protect his or her legitimate rights and interests under civil law. Therefore, when someone else live-streams attack and slander on social networks, the abused person can request the Court to disprove any piece of information of attack and slander and at the same time request as well the Court to force the person who gave such information to apologise, make public corrections and pay compensation for damages[3]. When the infringed person requests the Court to protect his or her lawful civil rights, he or she has the right to request the competent Court for judicial expertise in the field of information and communication or the Court may actively carry out the solicitation of assessment to determine the damage. The conclusion of judicial expertise will be important for the infringed person to determine the infringement action and the actual damage.
Secondly, in the administrative field, anyone who live-streams attacks and slanders others over social networks in the case of using a website in the way that “Providing false information, distorting, slandering or humiliating information on the honour of organisations, the honour, dignity, prestige of individuals” may be subject to an administrative fine of between VND10,000,000 and VND15,000,000, additionally sanctioned in the form of confiscating the exhibits and instrumentalities used for committing the violation, and be forced to dismiss such bad information.
Thirdly, in the criminal field, the criminal code refers to acts that seriously offends the dignity and honour of others and may constitute a crime as follows:
- First of all, it is the crime of humiliating another person under Article 155 of the Criminal Code 2015, as amended and supplemented in 2017. Accordingly, a person’s act of humiliating another person includes any method and means used for the intention of seriously offending the dignity and honour of another person, for example, posting or broadcasting “fake” photos, merging or splitting or editing video containing the offended person’s image, etc. The offender may be subject to a warning, an administrative fine of between VND10,000,000 and VND30,000,000, or non-custodial reform for up to 3 years. If the offender uses computer networks or telecommunications networks or electronic means to commit the crime or commits the crime twice or more, the offenders shall be sentenced to an aggravating prison term of between 3 months and 2 years[4].
- The next crime is slander under Article 156 of the Criminal Code 2015, as amended and supplemented in 2017. Accordingly, a person who commits one of the acts as fabricating information or spreading false information to seriously offend another person’s dignity and honour or harm to another person’s lawful rights and interests will commit slander. Although there is no definition of the term “fabrication”, based on the act of “spreading false information”, it can be understood that “fabrication” is any behaviour such as saying, writing, posting, broadcasting untrue statement, unreal information about a person but said, written, posted, broadcasted on social networks as a reality, or real information about a person is said, written, posted, or broadcast as not a reality. The act of “spreading false information” can be understood as that although a person does not participate in fabricating information, it abets those who fabricate information through acts of actively spreading and disseminating fake information. To fulfil the elements of the slander, both of the above acts must be aimed at offending the dignity and honour or causing damage to the legitimate rights and interests of another person. To determine the fact that such conduct has been committed, the investigative agency or the Court solicits judicial expertise in the field of information and communication to make a judgment on the slander based on the conclusion of the State authority in the field of information and communication. As the above analysis, the conclusion of the judicial expertise which the victim is granted as taking civil measures to protect himself or herself is the necessary supporting documentation for the request for criminal prosecution. Nonetheless, it is noted that the offender of slander is only be prosecuted at the request of the victim. If the victim withdraws his or her request after requesting the prosecution, the State authorities will cease the case and the victim is not entitled to request re-indictment. Nevertheless, if a person commits slander but there are aggravating circumstances such as an organisational violation, against 2 or more people, a computer network or a telecommunication network in use, or use of electronic means, etc., the State authority has the right to institute criminal cases without the request of the victim.
- On the other hand, since posting information of offending the honour and dignity of citizens is prohibited according to Article 12 of the Law on Information Technology 2006, Article 12 of the Law on Telecommunications 2009, Article 8.1(d) of the Law on Cybersecurity 2018, so if there are not enough elements to constitute a slander, the person who has the act of providing false information to offend the honour and dignity of another person may still take criminal liability according to Article 288 of the Criminal Code 2015 on the illegal provision or use of information on computer networks or telecommunications networks. Accordingly, anyone who uploads information on a computer network or a telecommunications network against the law and earns an illegal income of between VND50,000,000 and under VND 200,000,000 or causes the damage of between VND100,000,000 and under VND500,000,000 or causes bad public opinion leading to a decrease of the reputation of agencies, organisations, and individuals, shall be subject to an administrative fine from VND30,000,000 to VND200,000,000 and may face a penalty of up to 03 years of non-custodial reform or be sentenced between 6 months and 3 years of imprisonment. Qualitative damage, such as a decrease in the reputation of the person violated, is difficult to be determined precisely because there is no regulation to determine the implication of an individual’s reputation. However, on a case-by-case basis, the Court may assess and determine whether or not the credibility of an individual has been reduced by illegal acts, for example, a person is loved and admired by many people, thereby he or she is hired by a business to act as a brand ambassador, or to advertise products of such business, but due to illegal provision of information on such person over social networks, such enterprise’s products, goods or services are boycotted by consumers, or the agreement between such person and the enterprise is terminated, it can reasonably be assumed that such person’s reputation has been violated and reduced because of the crime of illegal provision of information over social networks. For this type of crime, the State authorities have the right to institute criminal cases without the request of the victim.
How an individual protects its honour, dignity, and prestige
The proverb says that “After death, a tiger’s skin remains, a man leaves only his name”. In society, reputation is a “province” with its importance not only at present but also in many next generations. Therefore, the prevention and elimination of attacking and defaming another person on a social network are particularly important and necessary to protect the honour, dignity, and prestige of one’s individual as well as the civilisation in behaviour on social networks. Thus whenever a person posts any information on social network platforms, such person needs to be calm, to select appropriate content and words to speak or write so as not to abuse the right to freedom of expression indiscriminately leading to possible violations of the law and sanctions.
Further to any individual attacked and slandered by others on social networks, although the law has not specifically provided the measures for such individual to protect itself its rights against infringing acts of the honour and prestige from live stream activities, except for some specialised fields such as intellectual property, the law only provides general principles for such individual to defend itself its rights, for example, an individual will himself or herself asks the infringer to stop the infringement, to apologise, to publicly rectify, and to compensate for damages. It should also be noted that personally responding to a perpetrator by measures known commonly on social networks such as live-streaming attacks back the perpetrator, hiring teams of media agents to “make media rescue campaign of media” or “to handle a crisis”, etc. should be conducted very carefully with words, sentences in response to the perpetrator to avoid turning themselves into an infringer.
Moreover, when an individual discovers that he or she is attacked and defamed on social networks, he or she should immediately report it to the professional cybersecurity force so that it can assess, handle, prevent such information from spread and dissemination, and dismiss it. The professional cybersecurity force of the Ministry of Public Security or the specialised division of the Provincial Police Security or the Ministry or provincial Department of Information and Communications will be the authorised force which the victim can reach out to report and request to handle infringing information. If the victim makes the above measures without positive results, he or she may also initiate a lawsuit to request competent authorities to protect his or her lawful rights and interests as the above analysis.
In a conclusion, live-streaming attacks against others and backbiting on social networks can be considered an infringement of the law, of human inviolable rights, and can be subject to civil and administrative liability or even crime as the above analysis. When reporting acts of serious offence against their honour and dignity to the State authority, the offended person should also pay attention to the crime of slander arising from that the offended person fabricates information of crime and denounces it to the State authorities to avoid the case that the offended person makes an incorrect report, and requests the State authorities to harshly handle the perpetrator with many criminal penalties due to his or her lack of calmness or finding of law. This can affect the victim, and he or she can be prosecuted for slander. The appropriate solution is to report facts and events together with related proofs and documents to the professional cybersecurity force for them to investigate, take measures of cybersecurity protection, to perform accusation, investigation, prosecution, and trial of perpetrator according to the provisions of the Criminal Procedure Code or handle administrative violations against the perpetrator. From the results handled by this specialised force, the violated person can initiate a lawsuit to request the rejection of untrue information, correction, public apology, compensation for damages.
[1] Article 34.1 of the Civil Code 2015.
[2] Article 12.2(d) of the Law on Information Technology 2006, Article 12.4 of the Law on Telecommunication and Article 8.1(d) of the Law on Cybersecurity 2018.
[3] Article 34 of the Civil Code 2015.
[4] Article 155 of the Criminal Code 2015 as amended in 2017.
