Some basic concepts
1.1.1 The concept of minors’ civil rights
The term “minor” appears commonly in many scientific disciplines such as jurisprudence, sociology, or psychology This term is defined differently depending on the angles There is no official definition of minors or the age to define a minor in the world However, the age of minor is determined differently depending on each country’s conditions, customs and laws
The Convention on the Rights of the Child (CRC) defines a child as an individual under 18 years of age, while the United Nations Rules for Protection of Juveniles Deprived of their Liberty and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) establish the age limit for minors at 18 However, regulations vary across countries, with some defining minors as individuals under the age of 14 (Germany) or between 8 and 18 (Greece).
3 United Nations General Assembly (1989), Convention on the Rights of the Child, Article 1
4 United Nations General Assembly (1990), Rules for the Protection of Juveniles Deprived of their Liberty, Article 11(a)
5 United Nations General Assembly (1985), Standard Minimum Rules for the Administration of Juvenile Justice, point a, clause 2.2, Article 2
6 Protection of minors, https://www.protection-of-minors.eu/en/rquest/1
Although there are differences in how the age is defined as a minor, when it comes to minors, it can be understood as those who are immature and do not have comprehensively mental and physical development They also have limitations in awareness, experience and life skills These points make minors very vulnerable
Civil rights are an important part of the totality of human rights Civil rights are understood as individual rights, closely tied to each person’s identity and can only be used independently by individuals and cannot be transferred to others In the International Covenant on Civil and Political Rights 1966 (ICCPR), civil rights are a set of human rights aimed at protecting the freedom of individuals against unwarranted acts of Governments, social organizations and individuals without discrimination 7 Civil rights in the ICCPR can be divided into these rights: the right to equality and non-discrimination; the right to life, liberty, and inviolability of the individual; the right to a fair trial; the right to freedom of movement and residence; the right to privacy; the right to freedom of thought, belief and religion and the right to marry, to establish a family and to be equal in marriage 8 Minors are also fundamental human rights holders, so the civil rights of minors are similar to the civil rights of people
However, due to the characteristics of minors, except for fundamental rights, minors have not only fundamental rights but also specific rights In other words, the civil rights of minors are special rights that only minors have and are granted by civil law Thus, the civil rights of minors can be defined as "the inherent and natural privileges that only minors are entitled according to the provisions of civil law in political conditions, certain economic, cultural and social conditions” 9 According to the CRC, the civil rights of minors include 25 rights and are divided into four groups of rights: the right to survival, the right to protection; the right to development and the right to participation Those rights are formulated explicitly for minors and develop upon the rights in the ICCPR
7 Nguyen Manh Hung (2013), Khái quát về các quyền dân sự của công dân trong lịch sử lập hiến Việt Nam và những đánh giá, đề xuất liên quan đến việc quy định và thực thi các quyền dân sự, Vietnamese Journal of legal sciences, No 03(76)/2013, p.11-20 https://tapchikhplvn.hcmulaw.edu.vn/module/xemchitietbaibao?oid4d714b-c5c1-476e-b1fe-
8 Nguyen Dang Dung et al (2015), Chương IV: Các quyền Dân sự và Chính trị trong luật quốc tế, in Textbook of theory and law on human rights, Ha Noi, National Political Publishing House, p.149 - 150
9 Vu Hong Minh (2010), Quyền của người chưa thành niên theo pháp luật dân sự Việt Nam, Master’s Thesis, Hanoi National University, Ha Noi, p 13
The Internet was invented as a result of research on the predecessor network ARPANET, a long-distance telecommunications network conducted by the United State Department of Defense for research and development purposes and military purposes The Internet is formed from the connection of many computers so that people can communicate and exchange information quickly and easily without meeting face-to-face Over half a century of development, until now, the Internet has become a global network with 4.88 billion users 10 In 2012, the United Nations Human Rights Council recognized “the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms.” 11 Nowadays, the Internet contains no end of benefits such as web browsers, social networks, news websites, search and lookup sites, utilities, etc Thus, the Internet has existed as an essential thing in human life as a means of connecting things, and it has contributed to creating a space where everyone can work, study or relax, which is called
The term “cyberspace” was first known in William Gibson’s novel 1984,
“Necromancer” He defined “cyberspace” as a daily consensual hallucination experience, a graphical representation of data from computer repositories in the human systems 12 After that, although there is no single universal definition, the term
“cyberspace” has been widely used in practice with many perspectives of concept from different researchers In general, cyberspace can be understood as: “an artificial environment where people do not directly meet each other, but they can exchange information and communicate with each other through a network system, which is fully connected to each other - a global network, on an interdependent information technology infrastructure across countries, regions, regions, and the globe.” 13
From a legal perspective, many countries also have their own definition of cyberspace In the United States, Cyberspace is defined as “a global domain within the
10 We are social và Hootsite (2021), Report on Digital 2021 October Global Statchot, https://wearesocial.com/uk/blog/2021/10/social-media-users-pass-the-4-5-billion-mark/
11 United Nations Human Rights Council (2012), The Resolution A/HRC/RES/20/8 on promotion, protection and enjoyment of human rights on the Internet, p.2, https://digitallibrary.un.org/record/731540?ln=en
12 William Gibson (1984), Neuromancer, New York: Berkley Publishing Group, 1989, pp 128.
13 Nguyen Phu Hung (2020), Quyền con người trên không gian mạng ở Việt Nam phù hợp với chuẩn mực Quốc tế, National Defence Journal, http://tapchiqptd.vn/vi/phong-chong-dbhb-tu-dien-bien-tu-chuyen-hoa/quyen- con-nguoi-tren-khong-gian-mang-o-viet-nam-phu-hop-voi-chuan-muc-quoc-te/15853.html
11 information environment consisting of the interdependent network of information technology infrastructures and resident data, including the internet, telecommunications networks, computer systems, and embedded processors and controllers.” 14 In Vietnam, the concept of cyberspace is defined in the Law on Cybersecurity 2018 that: “Cyberspace is the connected network of information technology [IT] infrastructure comprising telecom networks, the Internet, computer networks, information systems, information processing and control systems, and databases, where people perform social acts without being limited by space and time.” 15
From the above points of view, cyberspace can simply be understood as a virtual space, made up of a network connecting information technology infrastructure and a place for people to communicate and exchange information
1.1.3 Classification of minors’ civil rights in cyberspace
Moral rights are categorized as either inherent (acquired at birth) or status-based (derived from relationships).* Minors' moral rights in cyberspace fall into two groups: image, honor, and dignity; and privacy, family, and correspondence.* International treaties and national laws recognize image, honor, dignity, privacy, family, and correspondence as aspects of privacy rights.
Although there is no specific regulation, human rights agencies and scholars around the world have determined that the right to privacy is a basic civil right of every person, an essential right for the autonomy and self-respect of the individual as well as for the protection of human dignity 16 Privacy right plays an extremely important role for individuals and society It gives each person a space to be himself/herself without unjustifiable judgment, allows each person the freedom to
14 National Institute of Standards and Technology (2012), Guide for Conducting Risk Assessments, SP 800-30 REV.1 under Cyberspace from CNSSI 4009, p B-3
Typical infringing acts on the minors’ civil rights in cyberspace
There are many infringing acts on minors’ civil rights in cyberspace Below are some typical acts of infringing upon the civil rights of minors carried out in cyberspace
Firstly, acts infringe upon the minor’s right over his/her image 34 Commonly, parents often post images of their children on the Internet Some parents post images because they think their children are cute, want to show them off to friends, or want to
30 Doan Thi Ngoc Hai (2019), Quyền về đời sống riêng tư, bí mật cá nhân, bí mật gia đình trong pháp luật dân sự, Department of Justice of Bac Giang province, last accessed 07/05/2022, https://stp.bacgiang.gov.vn/hien-thi- noi-dung/-/asset_publisher/wtMnvtGfRUNi/content/quyen-ve-oi-song-rieng-tu-bi-mat-ca-nhan-bi-mat-gia-inh- trong-phap-luat-dan-su
31 United Nations Human Rights Council (1988), CCPR General Comment No 16: Article 17 (Right to Privacy),
The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation,
08/04/1988, Article 5, available at: https://www.refworld.org/docid/453883f922.html
32 Hoang Phe (1997), Vietnamese Dictionary, Da Nang publishing house, p.381
33 Oxford Pro Bono Publico of the Faculty of Law (2014), Privacy rights in the Digital Age, University of Oxford, p
17 https://www.aclu.org/sites/default/files/assets/jus14-report-iccpr-web-rel1.pdf
34 UNICEF (2017), The State of the World’s Children 2017 Children in a Digital World, p 92, https://www.unicef.org/reports/state-worlds-children-2017
16 preserve their children’s memories from the time they grew up Nevertheless, some people take the image of their children as a money-making tool for people’s likes and shares, increase interaction, sales promotion, and earn money On the other hand, when images and videos with the appearance of minors are publicly posted online, strangers other than parents and caregivers can also search and use them illegally for many purposes Images can be used as illustrations for articles with negative content, fake advertising images, or even edited, cropped into objectionable images, etc Those acts are harmful to minors’ psychology and development In short, regardless of the purpose of posting minors’ images online, it likely leads to be many consequences in the future once they are posted online
Secondly, infringing acts upon the right to honour and dignity are frequently performed, such as using hate speech to negatively impact on the honour and dignity of minors and giving inaccurate information about minors online causes others to misjudge them The term “hate speech” refers to very negative statements that attack or insult some personal characteristics of an individual or a group of individuals about their background, religion, race, or gender,… to incite or promote hatred and violence 35 Posting inaccurate information about a minor means that information related to a minor is posted online incomplete, unverified, or fabricated, affecting the honour and dignity of the minor This act often appears in the field of journalism When journalists exploit hot topics about minors, they publish false information just to attract more views of the news One more typical act that uses both hate speech and misinformation is cyberbullying Cyberbullying of minors is carried out when friends, acquaintances or even strangers constantly repeat words or actions online intending to hurt or embarrass the minors 36 Methods of doing this act are spreading lies or sending messages and commenting on posts with harsh, evil words
The third is infringing acts upon the right to private life, family and correspondence The acts of individuals, organizations and businesses collect minors’ personal data Information related to minors, especially children, often attracts a massive amount of attention, so collecting information related to their private life,
35 Nguyen Tien Duc, Tran Thi Thu Thuy (2020), Phát ngôn thù ghét trên mạng xã hội – Những vấn đề pháp lý đặt ra, Institute of State and Law No 3/2020, [24-35], p 25
36 UNICEF (2021), Bắt nạt trực tuyến là gì và làm thế nào để ngăn chặn nó, last accessed 06/05/2022, https://www.unicef.org/vietnam/vi/node/1311
The exploitation of minors' personal information for financial gain is a serious concern Businesses collect data such as names, ages, family details, and residential addresses to influence family spending decisions Minors' trust and accessibility make them easy targets for data collection, which can be used for targeted advertising or illegally sold for malicious purposes This practice poses significant physical and psychological risks to children and adolescents, highlighting the urgent need for measures to protect their privacy and well-being.
Platforms employ algorithms that continuously monitor user activities without human intervention, including access to content, message exchanges, and preferences These algorithms analyze data to recommend relevant content, target advertisements, and sell user information to third parties While community guidelines may exist, they often lack transparency about data collection and analysis, leaving minors vulnerable as they may not actively safeguard their privacy.
The relationship between the minors’ civil rights in cyberspace and Internet
When it comes to the civil rights of minors in cyberspace and the protection of these rights from infringement, it is impossible not to compare it with Internet freedoms because Internet freedom (freedom of expression) is the most abused right in cyberspace and directly infringes upon civil rights
The United Nations Human Rights Council, in its resolutions on the promotion, protection and enjoyment of human rights on the Internet and most recently in its 2021
In 2014, the Brazilian Internet Steering Committee conducted a survey titled "ICT Kids Online Brazil" to explore internet usage among Brazilian children This study, authored by Doneda, Danilo, and Carolina Rossini, revealed that in 2014, approximately 37 percent of children in Brazil accessed the internet at least once a week.
18 resolution, has continued to affirm “the same rights that people have offline must also be protected online, in particular freedom of expression” 38 Thus, Internet freedom is recognized as fundamental human right and freedom expressed in cyberspace Article
19 of the UDHR and Clause 1 of Article 19 of the ICCPR affirm that everyone has the right to freedom of expression without interference Clause 2 of Article 19 of the ICCPR stipulates that freedom of expression can be exercised in any form and by any means “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” 39 Accordingly, “expression” in general and in cyberspace is not only the act of speaking, but also includes the act of writing, symbolizing, non-verbal expression through images or art objects; seeking, receiving, and communicating their information and opinions anywhere Clause 2 protected all forms of expression and transmission, and the Internet is recognized as a means for people to exercise and promote their freedom of expression 40
However, Clause 3 of Article 19 of the ICCPR stipulates: “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” 41 Thus, the exercise of Internet freedom must always ensure that it does not infringe or affect the civil rights of others in cyberspace Internet freedom must be associated with one’s own responsibility before the law, and one must know how to control the exercise of this right In other words, the limitation of Internet freedom is respecting the rights and reputation of others in cyberspace (civil rights), including minors
Freedom of expression and civil rights protected in cyberspace are interrelated The first is the reciprocal relationship In cyberspace, protected civil rights create an
38 United Nations Human Rights Council (2021), The promotion, protection and enjoyment of human rights on the Internet : resolution / adopted by the Human Rights Council on 13 July 2021, p 3, https://digitallibrary.un.org/record/3937534?ln=en
39 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(2)
40 United Nations Human Rights Council (2011), General comment no 34, Article 19, Freedoms of opinion and expression, paragraph 12, https://digitallibrary.un.org/record/715606?ln=en
41 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(3)
Freedom of expression fosters the discovery and reporting of cyberspace civil rights violations, promoting their exercise However, conflicting relationships arise when infringement of one right (e.g., freedom of expression) can cause or result from infringement of the other (e.g., privacy rights) Web tracking technologies enhance the potential for monitoring and interference with personal data, potentially limiting minors' online activities, curtailing their access to information, and suppressing their freedom of speech and receipt of information Therefore, balancing these interests is essential for protecting both civil rights in cyberspace.
Limitations of Internet freedom cannot be arbitrarily regulated Restrictions on freedom of expression must be provided for by law Only the provisions of the laws of each country are strong enough to make citizens self-control their behaviour and aware of the liability to put the exercise of this right into the framework General Comment
According to No 34, a law must be precise enough to guide individual conduct and readily accessible to the public State regulation of expression restrictions under the ICCPR rests upon two conditions.
The first condition is that such restrictions must be urgent and appropriate Urgency is a restriction that is to prevent the harmful effects of exercising freedom of expression within a specific time limit, and the limitations of appropriateness or proportionality must be demonstrated that exercising freedom of expression can
Trong bối cảnh Internet, quyền tự do ngôn luận và quyền riêng tư thường mâu thuẫn với nhau Để cân bằng giữa hai quyền này, cần có sự điều chỉnh hợp lý của pháp luật Bài viết phân tích một số bản án của Tòa án Nhân quyền Châu Âu và Tòa án Công lý Châu Âu để làm rõ phạm vi bảo vệ quyền tự do ngôn luận và giới hạn can thiệp vào quyền riêng tư trong môi trường trực tuyến.
43 Carly Nyst (2018), Two sides of the same coin – the right to privacy and freedom of expression, Privacy International, last accessed 16/04/2022 https://privacyinternational.org/blog/1111/two-sides-same-coin-right- privacy-and-freedom-expression
44 United Nations Human Rights Council (2011), General comment no 34, Article 19, Freedoms of opinion and expression, paragraph 25, https://digitallibrary.un.org/record/715606?ln=en
20 actually be dangerous 45 Therefore, the limits regulated must be based on rigorous tests of necessity and proportionality 46
The second is that the restrictions must be for “respecting the rights or reputation of others” or of protection of “public order, or of public health or morals.” 47 In addition, Article 20 of the ICCPR also stipulates two limitations that must be regulated by law: one is to prohibit all forms of propaganda for war, and the other is to prohibit any advocacy that causes national, racial or religious hatred to incite racial discrimination, hostility, or violence Only public purposes that can be justified are considered legal and be the fundament of restrictions on freedom of expression Regulating limits with goals for which social consensus cannot be obtained, is not eligible Thus, the so-called absolute freedom of speech does not exist; most countries have limits on exercising this freedom of citizens.
The laws of some countries on the minors’ civil rights infringed in cyberspace
Cyberspace has promoted the exercise of human rights and the civil rights of minors in particular, but it causes many problems Hence, countries have different ways to protect human rights as well as the civil rights of minors in cyberspace There are some typical countries
In China, the world’s largest Internet access platforms such as Google, Facebook, Youtube, are not active China has built its own system of domestic platforms, such as Baidu, Weibo, Youku, This solution make it easier for China to focus on managing citizens’ activities in cyberspace with different policies In recent years, China has stepped up activities to protect citizens in cyberspace, especially for personal information The Personal Information Protection Law, enacted in 2021, protects personal information and regulates the handling of personal information The Social Credit System policy in which social media have built an algorithmic model to measure the creditworthiness of an individual by assessing the authenticity or positive
45 Vu Cong Giao, Hoang Thi Bich Ngoc (2018), Về giới hạn và việc giám sát tự do ngôn luận trong môi trường Internet, in Phạm vi và giới hạn của tự do Internet, Ha Noi, National Political Publishing House,[178-196], p 180
46 United Nations Human Rights Council (2011), General comment no 34, Article 19, Freedoms of opinion and expression, paragraph 22 https://digitallibrary.un.org/record/715606?ln=en
47 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(3)
21 interaction of his/her account This policy helps to limit many problems such as forgery and hate speech to protects the citizen’s civil rights, especially minors in cyberspace
In response to concerns over data protection and cybersecurity, the Chinese government introduced the Provisions on Online Protection of Children's Personal Information in 2019 These provisions regulate the online handling of minors' (under 14) personal information, requiring organizations to obtain guardian consent and provide opt-out options Additionally, minors and guardians have the right to request the modification or deletion of information in specific cases These regulations establish a legal framework for protecting children's personal information in cyberspace, delineating the responsibilities of guardians and network operators.
The protection of minors’ civil rights in cyberspace in the European Union (EU) has not had specific provisions for minors, but the fundamental privacy regulations can be relied upon to confirm that minors who are children are also entitled to this right According to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, “Everyone has the right to respect for his or her private and family
48 Cyberspace Administration of China,儿童个人信息网络保护规定 [Provision on the Cyber Protection of Children’s Personal Information], http://www.cac.gov.cn/2019-08/23/c_1124913903.htm
22 life, home and communications” 49 and “1 Everyone has the right to the protection of personal data concerning him or her 2 Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified 3 Compliance with these rules shall be subject to control by an independent authority.” 50
In EU, protecting personal data and respecting private life are two fundamentally different rights The right to privacy requires non-interference in the private life and family of others, while the right to protect personal information includes provisions for access and confidentiality of information Separating personal data from the right to privacy makes processing more transparent because there are situations where the right to privacy does not affect the right to protection of personal data 51
One of the critical pillars of the data protection regulatory framework in the EU, the General Data Protection Regulation 2018 (GDPR) provides the right to be forgotten for the first time The right to be forgotten has existed in European data protection law for more than 20 years since the Data Protection Directive 1995 Maintaining this right helps to ensure the practical application of data protection principles Then, with Article 17 of the GDPR, Internet users dramatically increase their control over their personal data It becomes less complicated to identify violations of users’ rights and determine the scope to which the data controller is obligated to delete users’ data
This right includes two other rights, one is the right to delete data, and the other is the right to delist 52 The right to delete data under the GDPR is that the subject has have personal data relating to him/her deleted from the controller without delay and the controller is obliged to delete the personal data without delay by one of the
49 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, Article 7
50 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, Article 8
51 Ngo Minh Huong, Nguyen Dinh Duc (2018), Quyền riêng tư của trẻ em trong không gian Internet tại Việt Nam, in Quyền về sự riêng tư, Ha Noi, National Political Publishing House [113-134], p 129.
52 The European Parliament and the Council of the European Union, General Data Protection Regulation, Article
17, https://gdpr-info.eu/art-17-gdpr/
23 legitimate reasons are listed Meanwhile, the right to delist is the right that the user request that the controller, who has made his/her personal data public, delete any links to or copy or replication such personal data In order to avoid infringing upon other freedoms in cyberspace, the right to be forgotten cannot be exercised under certain circumstances, including exercising the right to freedom of expression and information; complying with a legal obligation which requires processing under Union or Member State law to which the controller is subject, or for performing a task carried out in the public interest; for the benefit of the community in the field of public health; for archiving purpose in the public interest, for scientific or historical research purposes or for statistical purposes, and for the establishment, exercise or defence of legitimate claims
Regarding minors in the information society, GDPR grants the "right to be forgotten." This right allows children to request the erasure of their personal data when they have previously consented to its use For children aged 16 or older, they can submit the request themselves, while those under 16 require parental consent or authorization.
In addition to protecting data in cyberspace, the European Union also has strong reactions in combating infringing acts on honour and dignity in cyberspace Specifically, the European Commission’s Code of Conduct on Countering Illegal Hate Speech Online issued in 2016 puts the responsibility on the large technology companies such as Facebook, Microsoft, Twitter, and Youtube to make commitments to limit hate speech online Accordingly, these companies must have precise mechanisms in order to review illegal hate speech-related notifications on their platforms; prohibit incitement to acts of violence and hostility in community
53 The European Parliament and the Council of the European Union, Directive (Eu) 2015/1535 Of The European
Parliament And Of The Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services (codification), Article 1(b) https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uriEX:32015L1535#d1e245-1-1
54 The European Parliament and the Council of the European Union, General Data Protection Regulation, Clause 1(f), Article 17, https://gdpr-info.eu/art-17-gdpr/
24 guidelines; review valid hate speech removal notices within 24 hours, and remove or disable access to that content if necessary; etc 55
The provisions of Vietnamese law on the civil rights of minors infringed in
A minor in Vietnam is defined by the Civil Code 2015 as a person under the age of 18 58 The age for identification as minors and children is different from that specified by the CRC The Law on Children 2016 defined children as people under 16 years old 59 It can be seen that in Vietnam, children are a group of minors
Along with other countries, Vietnam also pays special attention to protecting the civil rights of minors in cyberspace First of all, Article 21 of the Constitution 2013 stipulates that: “1 Everyone is entitled to the inviolability of personal privacy, personal secrecy and familial secrecy and has the right to protect his or her honour and prestige Information regarding personal privacy, personal secrecy and familial secrecy is safely protected by the law 2 Everyone enjoys the secrecy of correspondence, telephone conversations, telegrams, and other forms of exchange of personal information No one is illegally allowed to open, control, and confiscate others’ correspondence, telephone conversations, telegrams, and other forms of exchange of personal information.” 60
The Civil Code of 2015 safeguards minors' digital privacy by incorporating provisions from the Constitution of 2013 and the Civil Code of 2005 Article 25, Clause 1, establishes moral rights as inherent to individuals, non-transferable except as prescribed by law Legal representatives must consent to any civil relations involving minors' moral rights, as per the Code, applicable laws, or court orders.
59 Congress (2016), Law on Children, Article 1
Generally, the current Vietnamese civil law does not have specific provisions on the civil rights of minors in cyberspace However, from the provisions of the Civil Code 2015, it is obvious that the civil rights of minors in cyberspace were mentioned through the following moral rights: the right of an individual over his/her the image; the right to protection of honour, dignity, reputation, and the right to private life, personal and family secrets
2.1.1 The right of an minors over his/her image
Article 32 of the Civil Code 2015 stipulates the rights of an individual over his/her images as follows:
“1 An individual has rights with respect to his/her own image
The use of an image of an individual must have his/her consent
When an image of an individual is used for commercial purposes, that person is eligible for a remuneration, unless otherwise agreed
2 The use of image for any of the following purposes needs not the consent of the image’s owner or his/her legal representative: a) For national and public benefits; b) For public activities, including conferences, seminars, sports activities, art shows and other public activities that do not infringe the honour, dignity or prestige of the image’s owner
3 In case the use of an image violates the provisions of this Article, the image’s owner has the right to request a court to issue a decision that compel the violator or relevant entities to revoke, destroy or terminate the use of the image, compensate for damage and adopt other measures as prescribed in law.” 62
In the Vietnamese legal system, the definition of an individual’s right to his/her image has not been regulated Clause 1 of Article 32 of the Civil Code 2015 only says that “An individual has rights with respect to his/her own image” without giving an explanation However, because this right belongs to the moral rights, it has the characteristics of the moral rights and some other unique characteristics 63 Firstly, this is an individual right Secondly, this is the right to personalized individuals in society Thirdly, the infringing act on individual rights to images is an act of affecting rights-
63 Ministry of Justice (2019), Một số vấn đề về quyền nhân thân đối với hình ảnh, last accessed 17/04/2022, https://moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID$70
27 related items, not directly affecting the subject of the right Fourthly, the protection method of this right is to protect when the individual has a request Finally, this is a moral right not tied to the property
Compared to the Civil Code 2005, the Civil Code 2015 has many changes The first is the payment of remuneration if the individual’s image is used for commercial purposes unless otherwise agreed This regulation has shown the practicality and ensured both the party’ rights having the image and the party wanting to use the image Because, in reality, the person who wants to use it only has to pay a fee without asking permission from the person with the image Secondly, new provisions have been added regarding the scope of use of images without consent It is allowed to use images from public activities, including conferences, seminars, sports competitions, performing arts and other public activities, without damaging the images’ owners’ honour, dignity and reputation Thirdly, the law removed the section on those who have the right to permit the use of images for people who have died, have lost their civil act capacity, and especially those who are under fifteen years old, and affirmed that the use of an individual’s image must be agreed by its owner Finally, the images’ owner has specific rights when he/she is infringed The images’ owner can request the court to issue a decision to force the infringer to revoke, destroy, or terminate the use of the image
The minors’ right to personal images in cyberspace is the same as the individuals' rights to images in the Civil Code 2015 In addition, according to Article
33 of Decree No 56/2017/ND-CP detailing a number of articles of the Law on Children, the personal image of minors who are children is one of the secret information of private life, personal secrets: “Secret information of private life, personal secrets are information about: name, age; personally identifiable characteristics; information about health status and private life written in the medical record; personal image; information about family members, caregivers of children; personal property; phone number; personal mailing address; address, information about place of residence, hometown; addresses, information about the children’s schools, grades, academic performance and friendships; information about services provided to individual children.” 64 In general, the provisions of the Vietnamese Civil
64 Government (2017), Decree No.56/2017/ND-CP detailing some articles of the Law on Children, Article 33
Code on the rights of individuals to their image are now stricter than that in the past in order to adapt to socio-economic development and the need for protection of moral rights of each individual
2.1.2 The right to protection of honour, dignity and reputation
The Civil Code 2005 only regulated this right briefly that: “The honour, dignity and reputation of an individual are respected and protected by law” 65 , but the Civil Code 2015 had been amended and supplemented with much more detail in Article 34:
“1 Honour, dignity and reputation of an individual are inviolable and shall be protected by law
2 Each individual has the right to request a court to reject any piece of information adversely affecting to his/her honour, dignity and/or reputation
The honour, dignity and reputation of a deceased person shall be protected at the request of his/her spouse or grown children; or his/her parent if he/she has no spouse or child unless otherwise prescribed by law
3 If a piece of information adversely affecting to the honour, dignity and reputation of a person is posted on a mean of mass media, that piece of information shall be removed or rectified by that kind of mean If that piece of information is kept by an agency, organization or individual, such entity is required to cancel it
Practice of implementation of the law on minors’ civil rights infringed on
2.2.1 An overview of the infringement of minors’ civil rights in cyberspace in
To ensure cybersecurity and children's safety online, Vietnamese law has implemented measures The Cybersecurity Law safeguards national security and social order in cyberspace The Code of Conduct on Social Networks establishes ethical norms and protects individual freedoms Furthermore, the Code of Conduct on Child Protection in Cyberspace aims to regulate user behavior and protect children from online threats.
Vietnam has also built many projects and participated in programs to boost the capacity of minors, especially children, and protect them from cyber threats Recently, the program “Protect and Support Children to Safely and Creatively Interact with
Cyberspace for the 2021-2025 Period” was approved by the Government Some other outstanding achievements such as the establishment of the Vietnam Association for Protection of Child Rights in 2008; national switchboard for child protection - a hotline to receive information, notify, denounce risks and acts of child abuse, provide psychological counseling and intervention, and support child protection; cooperating with the World Vision organization carrying out many activities to improve the quality of life of the community, especially children
However, the reality of infringing on the minors’ civil rights, especially children in cyberspace, is happening more and more alarmingly Although there are no specific statistics, the Ministry of Labour - Invalids and Social Affairs has confirmed that many children were abused and at risk of being abused in cyberspace 69 On average, 1 out of 4 surveyed children shared that they had a traumatic experience when using social networks; One-third were victims of bullying on social media 70 The infringing acts upon the civil rights that happen when children use the Internet are the acts of recording, filming, taking pictures, approaching them with violent or sensitive content; online bullying, etc
Infringing the right of minors to images in cyberspace is a very common phenomenon The first is infringement due to using the image for commercial purposes without the consent of the images’ owner Currently, content related to minors attracts a great deal of attention from viewers on online video platforms such as Tiktok and Youtube Images and videos posted by the minors themselves or their parents will quickly receive a rapid rise in views and widespread shares Although the owner has the right to block the download or share of such images and videos, viewers can still download them through supporting applications, such as the screen recording and capturing feature of the smartphone On the other hand, those platforms allow users to make money from their own images and videos Thus, when others download images and videos from the official account without the owner’s permission, they can re-edit and then re-post to the fake account, then turn on the monetization feature for those pictures and videos Due to the lack of the owner’s consent and using the image for commercial purposes, it is considered a violation according to Clause 1, Article 32 of the Civil Code 2015
Secondly, using and spreading images negatively affects the honour, dignity and reputation of the images’ owner Recently, the case of a male 11 th -grade student who committed suicide has aroused public opinion, especially the appearance of a video allegedly presenting that the boy talked to his father and then he climbed over the apartment’s balcony and jumped down, leading to death After being quickly
According to the conference "Preventing and Combating Child Abuse in Cyberspace and the Educational System" (2020), held by Thu Phuong (2020) and available on the website of the National Assembly of the Socialist Republic of Vietnam (last accessed on 21/04/2022 at https://quochoi.vn/tintuc/Pages/danh-sach-tin-tuc.aspx?ItemIDC804&CategoryId=0), child abuse prevention and combating measures were discussed in both cyberspace and educational settings.
70 Ministry of Labour, Invalids and Social Affair, UNICEF Việt Nam (2020), Báo cáo rà soát tài liệu và phân tích khung pháp lý về bảo vệ trẻ em trên môi trường mạng ở Việt Nam.
33 shared online, the clip shocked and saddened many viewers but many conflicting comments criticizing, even distorting, insulting honour and dignity not only the family but also the male student According to Clause 2, Article 32 of the Civil Code 2015, the use of images without the consent of the images’ owner or their representative is legal in the following situation: “a) For national and public benefits; b) For public activities, including conventions, seminars, sports activities, art shows and other public activities that do not infringe the honour, dignity or prestige of the image’s owner.” 71 Accordingly, this clip cannot be considered for the public benefits to be posted online without permission, this act shall cause damage to the honour, reputation and dignity of male student and his family, and it is an infringement on an individual’s right to his image
The reality of violating the minors’ right to protect honour, dignity and reputation in cyberspace also has many negative issues In Vietnam, Cyberbullying has appeared soon and tended to increase more intensely in recent years According to the
2022 summary report on: “Global crisis: Online harmful content and its effects on children’s online safety” conducted by Cyber Purify from 51 countries and territories and reputable surveys has confirmed that cyberbullying with hate speech is the most severe cyber safety problem when the frequency of hate speech is 54% and its influence is up to 70% 72 More specifically, in a cyberbullying study in 2016 with 1609 high school students from 6 schools in Hanoi, Thua Thien Hue and Can Tho 73 , it was found that 13.5% of students were bullied in school in 30 days prior to the survey time
In the types of bullying studied, the most common form of cyberbullying was being called by slang names, made fun of, and teased online or by phone (17.5%) and threatened online or by phone was the least common form (3.3%) Another survey conducted in 2020 on cyberbullying among junior high and high school students in Ho Chi Minh City with 1648 students showed the percentage of middle school and high
72 Cyberpurify(2022), Global crisis: Online harmful content and its effects on children’s online safety, p 11, https://drive.google.com/drive/u/0/folders/1xVNSD_3f0LA8ynQfrcfZka38hMnVcrI9
Cyberbullying among high school students remains a prevalent issue, with various factors contributing to its occurrence Pham Thi Thu Ba and Tran Quynh Anh (2016) conducted a study to investigate cyberbullying among high school students in Vietnam, focusing on factors such as depression, anxiety, and loneliness Their research, published in the Journal of Medical Research, revealed significant associations between these psychological factors and involvement in cyberbullying as both victims and perpetrators.
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34 school students being online bullied is 36.5% 74 It can be seen that the rate of students being bullied has gone up The alleged reason is that the development of the Internet and electronic devices in recent years has increased minors’ accession and early use, leading to online bullying
Moreover, there are also many cases of posting and spreading false information or revealing private life secrets that adversely affect minors’ honour, dignity and reputation A real situation of Mrs Nhung sharing her son’s sensitive story on social media and warning parents to control their children’s use of social media has caused much controversies The story begins when she discovered that her child had been dragged into group messages containing pornographic images She immediately exited those chat groups, smashed her child’s phone and took screenshots those groups, and then posted them on Facebook Minors being drawn into such groups can be accidental or intentional Minors are in the period when there is much curiosity about gender, so when they watch this content, it may be for satisfaction or for broad knowledge However, Mrs Nhung posted online with only warnings and images taken from groups that her child joined, people did not know the whole truth behind the incident Hence, many people do not understand correctly; even his peers, who are young and very sensitive to such things, may look at him with disgust, alienation, or tease him and make fun of him That information has damaged the honour, dignity and reputation of her child, and it is an infringement on the rights of minors to have their honour, dignity and reputation protected under Article 34 of the Civil Code 2015
Some legislative solutions
Uniforming the legal age of minors and children
Vietnamese law should homogenize the legal age of minors and children and raise it from under 16 years old to under 18 years old because of the following reasons 80
Scientifically, according to the World Health Organization (WHO), adolescents are between 10 and 19 years old In term of psychological perspective, they are in the period of human’s personal development, so they have many fluctuations Many scientific studies have also proven that people under the age of 18 are still in the process of psychophysiological development and are vulnerable, so this is a critical stage that needs attention and care
Legally, Vietnam needs to amend the legal age of children to create unity in the concept of children and minors Article 1 of the CRC defines a child as a person under
18 years old, but stipulates that “…unless under the law applicable to the child, majority is attained earlier.” 81 It means that the convention is also applicable to the State members’ laws which have the legal age of children is an earlier age for the majority, not an earlier age for being minors Vietnamese law stipulates that the age of children in the Law on Children is under 16 years old, while the age of adults is from
18 years old and the age of minors is under 18 years old, so defining a child as a person under 16 years old does not correspond to the Convention According to Clause 1, Article 6 of Law on Treaties, when there are differences in provisions on the same issue between domestic law and international treaties, the provisions of international treaties shall prevail, except the Constitution 82 The Constitution does not specify the age of children or adults, but it does stipulate that the voting age is 18 years old, so it is necessary to set the legal age for children to be under 18 years old On the other hand, although the age of children can be divided into different ages, it should
80 Nguyen Le Dan (2021), Độ tuổi pháp lý của trẻ em: một số vấn đề lý luận và thực tiễn, Industry and Trade Magazine, last accessed: 21/04/2022, https://tapchicongthuong.vn/bai-viet/do-tuoi-phap-ly-cua-tre-em-mot- so-van-de-ly-luan-va-thuc-tien-84755.htm
81 United Nations General Assembly (1989), Convention on the Rights of the Child, Article 1
82 Congress (2016), Law on Treaties, Article 6(1)
41 only be to adjust the balance in the protection of rights The age to determine whether a child or a minor needs to be unified into one because both two concepts refer to people who are not fully developed and do not have enough rights and obligations of citizens Raising the legal age to 18 years old is consistent with the CRC and other international legal documents that Vietnam participates in to ensure effective implementation
Practically, as mentioned above, the data shows the unfailing existence of minors aged 16-17 in many aspects of life and shortcomings in protection work This group of people shows that raising the legal age of children is essential to ensure that they have the best opportunity for development before entering adulthood
Uniforming the age of minors and children will positively impact on protecting the civil rights of minors in cyberspace Minors between the ages of 16 and 17 are widened to more comprehensive protection of their civil rights The civil rights of minors aged 16-17 facing the risk of being violated are not fully and thoroughly regulated Accordingly, programs and policies to protect from cyberspace infringement are only designed for children, so they do not apply to minors aged 16-17
If the legal age of children were adjusted, this group of people would officially approach support programs and services, and be given priority for care and protection in cyberspace Children aged 16-17 will receive more attention from society, and the protection of minors’ civil rights in cyberspace will have a completely legal fundament and ensure fairness
Reviewing, amending and supplementing some concepts in the minors’ civil rights in cyberspace
To develop a comprehensive legal framework for minors' civil rights in cyberspace, it is essential to refine and expand conceptual provisions related to their rights These amendments should apply both in the physical and digital realms, ensuring clarity and accessibility Specifically, clear definitions of infringing acts in cyberspace will help citizens understand and protect their rights Additionally, concepts such as "national and public benefits" require further clarification to prevent misinterpretation and ensure effective legal protection for minors in the digital age.
“commercial purposes”; the concept of “honour”, “dignity”, “reputation”; amending
42 or unifying the concepts of “private life”, “personal secrets” and “confidential information of private life”
For example, regarding the definitions of “honour”, “dignity”, “reputation” in the right to protection of honour, dignity, and reputation, there is a point of view of M.A Pham Minh Chau (2020) He based on the definition in the Legal Dictionary and the Vietnamese Dictionary 83 Honour is “the respect of public opinion, based on good spiritual and moral values, the respect for ethical standards towards an individual, and one of the factors to affirm the role and reputation of that individual in society”
Dignity is “the collection total of characteristic qualities of each individual, all the factors that make up the value of a person” Reputation is “the trust, admiration and respect of people around, the collective, the community towards an individual in a certain field such as moral quality, personality”
For the amendment or unification of the concepts of “private life”, “personal secret” and “confidential information of private life” can be studied under the provisions of the EU as mentioned above The law can separate the two concepts of
“private life confidential information” and “personal data” to decrease the limitations of the duplication of identifying information and what is considered a private secret
Supplementing the provision on the right to be forgotten
The right to be forgotten is crucial in cyberspace, empowering individuals to remove sensitive data and regain control over their personal information This right is particularly vital for minors, whose developing minds can be deeply impacted by the misuse of their data By enacting laws similar to the EU's legal framework, Vietnam can safeguard the civil rights of minors in cyberspace, mitigating potential psychological harm and ensuring their well-being.
The absence of data erasure mechanisms on online platforms would severely undermine minors' ability to safeguard their civil rights in the digital realm Minors frequently share personal information online, either knowingly or unknowingly, leading to potential consequences.
83 Pham Minh Chau (2020), Chế tài đối với hành vi xâm phạm danh dự, nhân phẩm, uy tín của cá nhân theo pháp luật dân sự ở Việt Nam, Master’s Thesis, Hanoi National University, Ha Noi, p 86, http://repository.vnu.edu.vn/handle/VNU_123/88502
Other solutions to improve the effectiveness of the implementation of
Firstly, a code of conduct to protect minors in cyberspace needs to be promulgated Making up a large proportion of the minor population in Vietnam, only children are being paid more attention to protecting civil rights violated in cyberspace The Code of Conduct to Protect Children in Cyberspace has been drafted Vietnam has also adopted a Code of Conduct on Social Media with the aim of safe development of social media in Vietnam, but only the provisions related to children are regulated; this
The lack of a dedicated code of conduct for minors in cyberspace leaves them vulnerable to civil rights infringements This absence allows toxic trends and ideological distortions to flourish, leading minors to accept harmful behaviors as norms In the name of fairness, equality, and comprehensive protection, a dedicated code of conduct is crucial for safeguarding minors' well-being online Its implementation will ensure that minors' rights are respected and that they have a safe and healthy digital environment free from exploitation and harm.
Secondly, the State should strengthen the implementation of measures to propagate and educate the law in many forms and to many different kinds of audiences to boost people’s awareness and responsibility for protecting minors’ civil rights in cyberspace
In terms of minors, the Internet has become an indispensable part of students’ academic lives, so they need to be taught about their civil rights in cyberspace by putting the content of minors’ civil rights in cyberspace into the mainstream curriculum The education at school is accessible to students at a comprehensive level
At the same time, it is compulsory to ensure that all students understand the content and how to protect their civil rights in cyberspace Besides, because most minors use social networks, propaganda through these platforms will also attract much attention from them The propaganda can appear in comics, animations, short films and advertisements on online platforms instead of signs and banners, so it is not only accessible to minors but also all other network users
Parents, caregivers, and teachers have a crucial role in safeguarding minors' online civil rights As the closest individuals to minors, their influence extends to home and school environments, making them effective advocates for protection and education By fostering an understanding of minors' rights, these individuals can prevent overreach in online privacy and ensure that minors' rights are respected and upheld.
45 knowledge and skills for parents and caregivers to prevent and against infringement in cyberspace and impart more straightforwardly to minors
Civil servants and people working in the State management agencies also need to know thoroughly about civil rights of minors who are children in cyberspace Civil servants working in the field of child protection, especially at the district and commune level, need to be trained and improve their expertise of child safety in cyberspace to do better their jobs in detection, handling and organizing programs, propaganda on the law to parents and caregivers
In addition to improving legal propaganda and education, the State management agencies need to enhance their liability to protect the civil rights of minors in cyberspace Central agencies should be specifically assigned to manage issues related to minor protection in cyberspace Moreover, it is essential to strengthening cooperation between the State agencies and organizations and cooperation between the State agencies and non-governmental organizations, social organizations and information technology enterprises to create and develop projects for detecting, supporting, intervening, and protecting minors from online infringement
Organizations, businesses, and service providers in cyberspace must also raise their liabilities to protect civil rights and prevent abuse of minors in cyberspace These organizations, businesses and service providers need to actively coordinate with the State agencies, develop and improve charters, community standards, programs and software to protect confidential information or other information that does not have the minors’ consent Online platforms where users have to register for an account should add more benefits for minor users such as a warning that pops up before a minor user posts a picture that has human’s face, etc Social media with news groups are often a place to share news very quickly and it is easy to reveal personal information Thus, these platforms should upgrade their scanning feature to be more precise in limiting, blocking or deleting posts and accounts that are likely to infringe on the minors’ civil rights
In general, the provisions of the law, no matter how strict they are, only create a legal framework to protect the civil rights of minors in cyberspace The most important thing is still the awareness, liability and reasonable love society gives to minors
No one can deny the development and popularity of the Internet today to people, especially minors It has created a global environment containing infinite information and connecting people together Minors are in the development stage, and always need to broaden knowledge, and cyberspace is the right place for them to do it; in other words, it is a space where the minors can maximize their freedoms However, everything has two sides, and cyberspace is no exception
In cyberspace, the civil rights of minors face many risks of being violated These civil rights infringements are very diverse and appear when people exceed the limit of freedom of expression in cyberspace The civil rights infringed are the privacy rights of each person According to Vietnamese law, they have expressed in the form of the individual rights to images; the right to protection of honour, dignity, reputation and the right to private life, personal and family secrets
The practical implementation of the Vietnamese law on minors’ civil rights infringed in cyberspace has many positive points, but there are also many obstacles and limitations The reality of the minors’ civil rights infringed in cyberspace is very seriously The rapid development of information and communication technology has made the level of infringement appear more and under different forms Meanwhile, the legal framework for the civil rights of minors is incomplete; many regulations overlap and contradict each other
In order to more comprehensively protect minors in cyberspace, it is essential to complete the provisions of the law on minors’ civil rights Soon, the State needs to continue to promote the positive aspects, and make efforts to exhaustively solve the remaining limitations for a safe cyberspace for minors./
7 Cyberspace Administration of China, 儿童个人信息网络保护规定 [Provision on the Cyber Protection of Children’s Personal Information], http://www.cac.gov.cn/2019-08/23/c_1124913903.htm
8 European Union, Charter of Fundamental Rights of the European Union, 26
9 Government (2017), Decree No.56/2017/ND-CP detailing some articles of the
10 National Institute of Standards and Technology (2012), Guide for Conducting Risk
Assessments, SP 800-30 REV.1 under Cyberspace from CNSSI 4009,
11 The European Parliament and the Council of the European Union, Directive (Eu)