Under the laws of Vietnam, e-commerce activity means conducting a part or the whole of the process of commercial activity by electronic means connected to the internet, mobile telecommunications network or other open networks. A commercial activity is activity for profit-making purposes, comprising purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit making purpose. The operation of e-commerce in Vietnam is currently governed by Decree 52 (Decree No. 52/2013/ND-CP of the GOV dated 16 May 2013 on e-commerce activities, as amended by Decree No. 08/2018/ND-CP dated 15 January 2018 and Decree No. 85/2021/ND-CP dated 25 September 2021) and its guiding circulars. Based on general rules set forth in Decree 52, e-commerce activities conducted via application on mobile devices are specified in Circular 59 (Circular No. 59/2015/TT-BCT of the MOIT dated 31 December 2015 on ecommerce via applications on mobile devices, as amended by Circular No. 21/2018/TT-BCT of the MOIT dated 20 August 2018), while e-commerce websites are separately governed by Circular 47 (Circular No. 59/2015/TT-BCT of the MOIT dated 31 December 2015 on ecommerce via applications on mobile devices, as amended by Circular No. 21/2018/TT-BCT of the MOIT dated 20 August 2018).
Pursuant to Decree 52, e-commerce websites or apps can be construed that such website or app is set up to serve part or the whole of the process of purchasing and selling goods or providing services, from displaying and introducing goods or services to concluding contracts, providing services, making payment and providing after-sales services. Accordingly, there are two forms of organization of e-commerce activity, i.e., sales e-commerce website / mobile application and e-commerce service provision website / app. A sales e-commerce website is an e-commerce website that are established by traders, organizations or individuals to serve their trade promotion, sale of goods or supply of services. An e-commerce service provision website is an e-commerce website developed by is developed by traders, organizations or individuals to provide an environment for other traders, organizations or individuals to conduct their commercial activities. Such website will be set up in one of the following types:
- E-commerce trading floor;
- Online auction website;
- Online promotion website; and
- Other types of website as stipulated by the Ministry of Industry and Trade.
For operation of such a website / app, it is required to satisfy the described specific conditions under Decree 52 for its official operation including requirements on carrying out the procedures with the Ministry of Industry and Trade:
- a sale e-commerce website or a sale app is subject to notification of a sale e-commerce website or a sale app with the MOIT through the online tool on the portal of management of e-commerce activities (the “Notification Procedure”);
- a service provision website, which is divided into various types of services, must register their service provision website or app with the MOIT through the online tool on the portal of management of e-commerce activities (the “Registration Procedure”).
Unless otherwise stipulated by laws, organizations or individuals must adhere to a principled requirement under the prevailing laws of Vietnam in respect of personal data protection, i.e., a requirement on obtaining the consent from data subjects prior to processing their personal information. Infringements of the personal information protection in the sector of e-commerce shall be subject to administrative penalties in accordance with Decree 98-2020.
For information purpose, Decree 52 has been amended, supplemented by Decree 85-2021, which will take effect as of 1 January 2022.
E-commerce websites/apps are deemed to be e-commerce activities in Vietnam if they involve one of the following three elements:
- the e-commerce website uses a .vn domain name;
- the e-commerce website displays the Vietnamese language;
- the e-commerce website has more than 100,000 transactions originating in Vietnam in a given year.
All entities falling within these definitions must first, register their e-commerce activities pursuant to Decree 85 as it amends Decree 52. This seems to include foreign entities who provide these service cross-border as they must comply with the notification of an e-sales website (which is fairy simple) or the registration of one of the other types of e-commerce website (which is subject to market approach conditions for foreign investors).
In addition to the proper procedure for notifying or registering their e-commerce website with the authorities, the cross-border provider who engages in conducting e-commerce activities in Vietnam must either establish a representative office or appoint an authorized representative. The representative office or authorized representative must be responsible for the following items:
- Cooperate with regulatory authorities to prevent transactions of goods and services in violation of the law of Vietnam;
- Fulfill the obligation to protect consumers’ interests as well as quality of goods and services as prescribed by the law of Vietnam;
- Submit statistical reports as prescribed by January 15 of each year.
A recent discussion with the head of the Ministry of Public Security with local chambers of commerce revealed that, in principle, the cybersecurity requirement of data localization will be imposed on any entity providing cross-border e-commerce services or sales that is seen to fail in its obligation to cooperate with the Vietnamese authorities. This would suggest that data localization, then, is only imposed on those entities who have screwed up at least once and failed to repair the fault at the request of the authorities.
E-commerce activities continue to receive attention from the government and the National Assembly and this overview will only apply for a brief period of time until there is more detailed information and regulation provided by the authorities. In the meantime, feel free to pursue your sales or services websites and apps per the above, remembering always that this is not legal advice we dispense here, but only informational suggestions.