Protection of the right to privacy in the digital age reflection on the vietnamese context (luận văn thạc sĩ luật học)

VIETNAM NATIONAL UNIVERSITY - HANOI SCHOOL OF LAW LÊ TRẦN NHƯ TUYÊN PROTECTION OF THE RIGHT TO PRIVACY IN THE DIGITAL AGE: REFLECTION ON THE VIETNAMESE CONTEXT MASTER OF LAW THESIS HANOI - 2019 VIETNAM NATIONAL UNIVERSITY - HANOI SCHOOL OF LAW LÊ TRẦN NHƯ TUYÊN PROTECTION OF THE RIGHT TO PRIVACY IN THE DIGITAL AGE: REFLECTION ON THE VIETNAMESE CONTEXT Specialized: Human Rights Law Code: 8380101.07 MASTER OF LAW THESIS Supervisor: Dr NGUYỄN THỊ THANH HẢI HANOI - 2019 CONFIRMATION I assure you this is my own research The data and results presented in this thesis are honest and have not been published by anyone in any previous work or thesis The information referenced in the thesis is fully and carefully cited by the author MASTER‘S STUDENT Lê Trần Như Tuyên ACKNOWLEDGEMENTS Throughout the writing of this thesis I have received a great deal of support and assistance I would first like to express my deep gratitude to my thesis advisor Dr Nguyễn Thị Thanh Hải of the Ho Chi Minh National Academy of Politics for the useful comments, remarks and engagement through the learning process of this master thesis She consistently allowed this paper to be my own work but steered me in the right the direction whenever she thought I needed it I would also like to thank to my Master of Human Rights Law lecturers for helped me gain a lot of knowledge in this important field Special thanks are given to the Faculty of law at VNU Hanoi and the Department of Constitutional and Administrative Law for helping me during the course Finally, I must express my very profound gratitude to my parents and my friends for providing me with unfailing support and continuous encouragement throughout my years of study and through the process of researching and writing this thesis This accomplishment would not have been possible without them Thank you Hanoi, August 18, 2019 Lê Trần Như Tuyên TABLE OF CONTENTS INTRODUCTION Chapter 1: OVERVIEW OF THE DIGITAL AGE AND THE RIGHT TO PRIVACY 1.1 The Digital Age 1.2 The Right to privacy 14 1.2.1 History 15 1.2.2 Concepts 17 1.2.3 Right to privacy in the International Human Rights Law 23 1.3 The need for legislation of privacy in Digital Age 30 1.4 Right to privacy laws in other countries 39 1.4.1 European 39 1.4.2 The United States data privacy 44 Chapter 2: THE RIGHT TO PRIVACY IN DIGITAL AGE IN VIETNAM 49 2.1 The impacts of Digital Age on privacy in Vietnam 49 2.2 Legal framework on privacy in Digital Age 57 2.2.1 Privacy stipulated in Vietnamese Constitution 57 2.2.2 Privacy in some specialised laws 59 Chapter 3: DISCUSSION 72 3.1 Discussion on the challenges and gaps of the protection of the right to privacy in Vietnam 72 3.1.1 Conceptual challenges 72 3.1.2 Political challenges 73 3.1.3 Social and cultural challenges 75 3.1.2 Legal challenges 76 3.2 Recommendations 82 CONCLUSION 89 REFERENCES 91 INTRODUCTION The rationale The Right to privacy (also known as Privacy) is a fundamental human right, essential to autonomy and the protection of human dignity, serving as the foundation upon which many other human rights are built The modern privacy benchmark at an international level can be found in the 1948 Universal Declaration of Human Rights, which specifically protected territorial and communications privacy Other international human rights instruments contain similar provisions According to opinion polls, concern over privacy violations is now greater than at any time in recent history [38] The world is in the Digital Age, no countries in the world could avoid the powerful impacts exerted by innovative scientific achievements of the age The technology achievements bring about modern and convenient life, boost economic growth, encourage the developments of medicine, education, and many other fields However, the downside of this miraculous leap is that humans have to face challenges of their rights, including privacy, being violated In the Digital Age, the aspect of information/data privacy in privacy is the most vulnerable one Meanwhile, in many countries, laws have not kept up with the technology, leaving significant gaps in privacy protections Vietnam is in the period of internationally integrating in many fields, actively observing, and renovating updated technologies for the economic development and people‘s wellbeing New technologies such as AI, Big Data, and IoT, on the one hand, bring about great opportunities, but on the other hand, entails threats of violating personal privacy In Vietnam, the trade of personal data has happened effortlessly and publicly with low costs for years Although the leaking of personal data is a common situation in Vietnam, there have not been any recorded enforcement actions in relation to such leaking In reality, in Vietnam, people‘s awareness of deploying technology to protect their privacy is still poor, which leads to the fact that the risks of their privacy being violated are more impending than ever The problem of violating privacy in Vietnam is increasingly serious and complicated, especially with the help of new technologies Meanwhile, the active roles of the State in carrying out the tasks of respecting, protecting, and promoting privacy have not received adequate attentions Together with the Constitution, the legal system in Vietnam, in general, has set up a fundamental basis for the protection of individuals‘ privacy values through laws on certain fields Nevertheless, these provisions mostly are about protecting privacy in general life Some specialised laws have introduced some provisions, mostly in form of general principles which are not specific enough, to especially protect individuals‘ personal information in the internet or the digital world The issue shows that Vietnam‘s legal frame on protecting personal information on the internet and the digital world is weak Hence, to integrate with international policies in the Digital Age, it is high time for Vietnam to adopt necessary and significant changes to keep in track with the era‘s trends On a global scale, ensuring privacy and protecting data secrecy and personal information in the Digital Age is a huge concern But the term ―privacy‖, especially the data privacy in the Digital Age, is relatively new in Vietnam There are not many discussions and not much study on privacy, nor is there a consistent definition of ―privacy‖ in Vietnam It is important to clarify the definition of privacy, the influence of digital technology on privacy, the need for modify provisions on data privacy in specialised laws and formulate a comprehensive law on privacy and data protection These points need to be analyzed from the theory, context and legal practice to provide information and social critics to identify fruitful avenues for future privacy in the Digital Age Therefore, in the framework of the master‘s thesis in the Law of Human Rights, the writer decided to choose topic ―Protection of the Right to Privacy in the Digital Age: Reflection on the Vietnamese Context‖ Research Situation In recent years, there have been many projects and research work on privacy which have been carried out under different angles and in different areas, such as: In Vietnam: - Lê Đình Nghị (2009), PhD law thesis ―Quyền bí mật đời tư theo quy định pháp luật Việt Nam‖, Hanoi Law University - Thái Thị Tuyết Dung (2012), Monograph ―Quyền tiếp cận thông tin quyền riêng tư Việt Nam số quốc gia‖, Vietnam National University - Ho Chi Minh City press - Nguyễn Thị Ánh Hồng (2014), Research topic ―Bảo vệ quyền đảm bảo bí mật, an tồn thư tín, điện thoại, điện tín cơng dân pháp luật quốc tế pháp luật Việt Nam‖, Legal Science Journal 2/2014, p 51 - Nguyễn Thị Huyền Trang (2014), Master‘s thesis ―Quyền bảo vệ đời tư pháp luật quốc tế pháp luật Việt Nam‖, School of law – VNU Hanoi - Lê Văn Sua (2016), Research topic ―Quyền bí mật đời tư cần hướng dẫn cụ thể‖, Vietnam Lawyers magazine 5/2016, p 27 - Hoàng Lê Minh (2016), Master‘s thesis ―Quyền bí mật đời tư Hiến pháp năm 2013 thực tiễn Việt Nam‖, Hanoi Law University - Vũ Công Giao, Phạm Thị Hậu (2017), Research topic ―Pháp luật bảo vệ quyền bí mật liệu cá nhân giới Việt Nam‖, State and Law Review 2/2017, p 67 - School of law – VNU Hanoi (2018), Monograph ―Quyền riêng tư‖, National political publishing house, Hanoi In other countries: - Bratman B E (2002), Research topic ―Brandeis and Warren‘s the Right to Privacy and the Birth of the Right to Privacy”, Tennessee Law Review, Vol 69, p 344 - Solove D J (2002), Research topic ―Conceptualizing privacy‖, California Law Review, Vol 90, No 4, p 1094 - Solove D J (2011), Monograph ―Nothing to Hide: The False Tradeoff between Privacy and Security‖, New Haven & London, Yale University Press - Liu, Ximeng; Yang, Yang; Choo, Kim-Kwang Raymond; Wang, Huaqun (2018), Research topic ―Security and Privacy Challenges for Internetof-Things and Fog Computing‖, Wireless Communications and Mobile Computing journal 24 September 2018, p 1–3 These studies have provided great knowledge and information about the theory, the position and role of law in the protection of privacy in Vietnam in general, as well as preliminary references to the privacy, but until now, there are not many work or study specifically on privacy and data privacy in the Digital Age Therefore, this is a systematic research and in-depth practice of privacy - reflection on the Vietnamese context to propose orientation and solutions to ensure the right to privacy in modern world The Purpose and Mission of the Study 3.1 The Purpose This project aims to better understand privacy in the Digital Age and assess the actual situation of the application of this right in Vietnam Based on such theories and practices, the thesis proposes solutions and recommendations to ensure human rights in general and customary privacy in particular in the coming time 3.2 Mission In order to achieve the above objectives, the thesis must cover the following tasks: - Analyzing and clarifying theoretical issues about privacy in the Digital Age, legal situation of this right under international laws, laws of some countries - Analysis of the context and the legal situation of privacy in digital in Vietnam - Propose the orientations, solutions and recommendations to guarantee implementation of privacy in the future Subject and Scope of the Study Study on the impact of Digital Age in Vietnam on privacy and privacy according to the current laws, including the 2013 Constitution, The 2015 Civil Code and some specialised laws on privacy Provide an overview of protecting privacy in Digital Age and propose the recommendations to protect the right to privacy in Vietnam Methodology and research methods The thesis applies an methodology in combination with method of analyzing, synthesizing, comparing documents, which attaches the importance to the summarization of context and laws on privacy, and at the same time, 2) Authorised state agencies need examine and modify systematically current legal documents that contain provisions on privacy and make amendments to ones which are inappropriate and incompatible with the world‟s general trends and the International Human Rights Law Current legislative activities need to be reflective of the 2013 Constitution and international treaties which Vietnam has joined Additionally, term definitions in laws should be contrasted carefully to ensure the synchronisation, consistency, and compatibility with general international viewpoints 3) Formulate a law to protect privacy and data privacy Privacy is one the human rights which are extremely important to each individual and accepted by many international communities As a result, in the Digital Age, many countries in the world, such as Canada, France, Germany, and Japan, have passed exclusive laws to protect privacy The laws clearly stipulate, in detail, principles to protect personal data, rights to subject of data, duties of data subjects, rights and duties of subjects responsible for protecting data, and agencies that bear the responsibilities of managing and protecting personal data However, provisions on protecting privacy in Vietnam are sparsely scattered in many different legal documents The lack of concentration and consistency has caused overlaps and led to inconsistent understandings and applications of laws It is high time that Vietnam carried out research to formulate and introduce a law to protect privacy The law should be a comprehensive system of definitions, principles, institutions, and methods to protect human privacy The systemisation of legal provisions to protect data privacy into one specific law serves as a strong legal basis for humans to enjoy privacy more comfortably, bringing Vietnamese‘s law one step closer to international standards 83 4) Formulating mechanisms to punish the violations more clearly with adequate sanctions As analysed above, punishments for violations of privacy in general and, more specifically, data privacy in Vietnam are not adequate, and not strict enough Furthermore, these punishments are scattered in many different legal documents and are unable to cover all the violations of data privacy In order to protect the rights and benefits of citizens, government agencies should heavily punish organisations and enterprises that violate data privacy by formulating mechanisms to punish the violations more clearly with adequate sanctions 5) The State should take the responsibility and assume the main roles in respecting, protecting, and promoting privacy Ensuring the application and implementation of law should be based on legal provisions, should maintain humanity rather than being rigid, embracing words written in laws For example, provisions on the principle of public trials in Article 18 in the Criminal Procedure Code says: ―For special cases involved in state secrets and national traditions or personal secrecy as per litigants‘ rational requests, a court may try in closed session but must pronounce its judgements publicly‖ This means courts maintain the right to pronounce the conclusions in the judgement However, in real trials, judges normally read all the detail in the judgement which includes every detail of the crime This makes ―secret information‖ not secret anymore The rigid application of the written words of ―pronounce publicly‖ has caused the implication of protecting private life‘s values in the law to become in vain and to be ―totally legitimately‖ violated by law enforcing agencies Meanwhile, if the provision interpreted correctly, only the punishments, which are the last details in the judgement, are to be pronounced 6) The State should set a clear boundary of intervention to avoid power abuses and violation of personal privacy Human rights and citizen rights can 84 only be limited according to provisions by laws in necessary circumstances for reasons of national defence, national security, social order, social safety, morals, and community health 7) The State should have mechanisms to facilitate agencies, organisations, and individuals to participate in the open information environment, however, the principles to protect privacy of citizens must be ensured For people‘s privacy to be ensured in reality, there must be mechanisms and cooperation, observation, evaluation, and supervision rules 8) In-depth research on privacy Privacy is an area that is very new both in Vietnamese society and in Vietnamese law The concept of privacy is new and developing There is a need for in-depth research on privacy to understand the term, its connotation, and its importance properly and consistently 9) Teaching the knowledge about technology and laws To produce positive effects in ensuring privacy, the first subjects to be aimed at should be each individual Their knowledge about privacy and data privacy need to be widened to obtain proper and comprehensive perceptions of their rights and violations of their rights Individuals should themselves protect their privacy and should themselves take responsibility when providing their data They should also respect others‘ privacy, not reveal, exploit, provide others‘ information/ data without the owners‘ consent Besides, the effectiveness of news channels should be enhanced The methods, contents, and forms of popularising, publicising, and teaching the knowledge about technology and laws, ways to protect personal privacy against impacts posed by the downsides of technologies, and ways to build people‘s trust in laws should be altered and researched frequently People‘s rights should be popularised so that people would supervise the State‘s implementation of the rights Everyone has his or her skill level in using a computer and the network 85 Personal education should be planned and conducted based on a person‘s skill level In general, young people can easily understand computers and the network because they are accustomed to computers as game machines In contrast, many older people have difficulty understanding them Thus, education should match skill level And because gaps exist among countries, international conferences and forums must be held to ensure that these gaps dissolve in the future There are several ways to make all individuals understand and respect laws on privacy and relevant international covenants about human rights such as advertisements, television programs, panels, posters, and specially inclusion into the education system at all levels The popularisation should aim at not only individuals but also enterprises, other subjects, and cadres Enterprises should be encouraged to maintain the awareness of protecting customers‘ data Only by doing so can the sustainable developments of enterprises be ensured The protection of privacy is the very responsibility of the State However, the roles of the whole community are also important 10) Facilities and methods to protect data privacy like methods to protect credit information, pseudonymisation, encryption of information in education and medical fields, and technological facilities for e-commerce businesses and telecommunications should be invested in, built, and completed in fields and sectors 11) Mass media‟s responsibilities and duties should be more clearly identified The acts of providing and managing information should be developed suitably False news and information that can negatively impact the social stability, the sustainable development of the country and violate citizens‘ privacy should be prevented News agencies not embracing the rules and the journalism purposes and not strictly following laws, especially journalism ones on ensuring privacy, should be examined and corrected 86 Journalists‘ ethics should regularly be taught, improved, and raised There should be cooperation to implement and ensure cybersecurity and correspondence safety Security in transferring private information should be strengthened Cyber-attacks and illegal online data collection should be timely prevented Only through these recommendations can stable bases for the respect and protection of personal privacy on mass media be established 12) Duties assigned by international communities and international agreements which Vietnam has joined should be well conducted Vietnam should also gain the approval and support by international communities while protecting national interests in international organisations in the field of human rights and privacy protection, improving its national credit and position in international communities, developing, and defend the country Conclusion of Chapter This Chapter answers how to improve the effectiveness of protecting privacy and how to solve the limitations arise Protecting the rights to privacy is one of the urgent requirements at present It is one of the tools to contribute to the process of the socialist rule of law state of the People, by the People and for the People In the process of improving regulations on the rights to privacy, in addition to the minimum legal standards of law-drafting activities such as complying with the process and procedures according to regulations laws, etc., there must also be orientations and perspectives to serve as the basis for this activity and ensure compliance with the requirements of international economic integration practices and internalization of international conventions on human rights There are a number of key solutions, including: institutional improvement, among them focusing on completing regulations on privacy, formulate a comprehensive and consistent law to protect privacy and data privacy, continue to propagate and 87 disseminate legal regulations on privacy In short, to protect the right to privacy, it is not only the responsibility of the authorize body, public servant but also people and organisations 88 CONCLUSION Privacy is a fundamental human right It underpins human dignity and other values such as freedom of association and freedom of speech It has become one of the most important human rights of the modern age Privacy is recognized around the world in diverse regions and cultures It is protected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights treaties Nearly every country in the world includes a right of privacy in its constitution Technological developments have increased the capabilities to protect privacy, but technical capabilities now exist for surveillance and interference with our privacy too, without precedent An important element of the right to privacy is the right to protection of personal data Advancements in processing personal data are outpacing existing, out-of-date legal protections This thesis clarifies the theories, significance and importance of protection of the Right to Privacy in the Digital Age By researching the protection of the right to privacy in Vietnamese context, this thesis shows the challenges and limitations through which presents solutions to improve the efficiency to protect human rights in general and the rights to privacy in particular It also provides and considers provisions in some States in the world for developing the privacy laws in Vietnam Vietnam is in the period of internationally integrating in many fields, actively observing, and renovating updated technologies for the economic development and people‘s wellbeing New technologies such as AI, Big Data, and IoT, on the one hand, bring about great opportunities, but on the other hand, entails threats of violating personal privacy Through periods of social development, privacy of individuals in Vietnamese law is extended and 89 embrace more closely the provisions on privacy under the Universal Declaration of Human Rights From the 1942 Constitution only established inviolable rights to residence and privacy of correspondence of Vietnamese citizens, the 2013 Constitution has acknowledged the inviolable rights to personal privacy, personal secrecy, and familial secrecy of individuals But the term ―privacy in the Digital Age" is new and unfamiliar in Vietnam Data privacy has begun to be recognized and reflected in a number of specialized laws such as the 2006 Law on Information Technology, the 2015 Law on Cyber Information Security and the 2018 Cybersecurity law However, the fact this level of protection is not commensurate with the challenges arise from technological Vietnam still hasn‘t enacted any specific laws to regulate the field The legal framework still has many gaps Basically, the current law can only establish a weak legal frame to protect general privacy values of individuals Vietnam has brought in many legal documents containing provisions regarding the protection of privacy, but these provisions are sparse, inconsistent, and inappropriate, leading to risks to privacy protection or hindering privacy protection Hence, the privacy protection in the country still faces considerable challenges Therefore, it is high time for 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Therefore, in the framework of the master‘s thesis in the Law of Human Rights, the writer decided to choose topic ? ?Protection of the Right to Privacy in the Digital Age: Reflection on the Vietnamese Context? ??... Overview of the Digital Age and the Right to Privacy Chapter 2: The Right to Privacy in Digital Age in Vietnam Chapter 3: Discussion Chapter 1: OVERVIEW OF THE DIGITAL AGE AND THE RIGHT TO PRIVACY The. .. issues of the privacy and the importance of protecting privacy in the Digital Age Secondly, analyzing the impacts on privacy of digital and the need for legislation of privacy in Digital Age Thirdly,