New law on digital advertising: clarity or chaos for influencers?

New law on digital advertising: clarity or chaos for influencers?

In the 9th session of the 15th National Assembly in Vietnam, delegate Nguyen Tam Hung introduced a bill to amend the Advertising Law. The aim of this draft is to modernize advertising practice in the digital environment. A central component of the draft law are the regulations on cross-border advertising services and the responsibilities of companies in online advertising. How Vietnam.vn reported, however, there are significant concerns from delegates.

Particularly critical is Clause 14, Article 1, which contains unclear identifying factors for cross-border advertising services in Vietnam. Delegates call for specific criteria to be set for these services based on technical practices and consumer reception. In addition, Article 15a, paragraph 3 stated that influencers must check the credibility of advertisers and use their products themselves before the introduction. A clear definition and guidelines for influencers in the digital space are also required.

Responsibilities of providers

Another important point concerns the responsibilities of digital platform providers. Clause 5, Article 23 describes these in detail, but sets high requirements for cross-border platforms that do not have a legal headquarters in Vietnam. Delegates suggested that these platforms should be required to appoint a legal representative in Vietnam. Furthermore, recommendations are made for clear technical standards for controlling advertising.

Article 23, paragraph 2 states that advertising should provide a function to disable and reject inappropriate advertisements, but the feedback mechanisms in this area remain unclear. A proposal is being discussed to set up a portal for advertising infringement reports in Vietnamese, with a maximum processing time of 72 hours.

Lack of international coordination

However, despite the proposed measures, provisions on an international coordination mechanism to control cross-border advertising infringements are missing. This highlights the need for a data exchange system and technical cooperation between administrative authorities and cross-border platforms. This is particularly challenging in a globalized environment, as all advertising posted on the Internet is considered cross-border. In this context points 2S IP points out that the global presence of Internet advertising raises questions about jurisdiction.

According to the “crime scene principle”, every German court can in principle be responsible for advertising that is available in its district. However, this jurisdiction only applies if the advertising is aimed specifically at consumers or traders in the relevant jurisdiction. There is uncertainty regarding the application of German substantive competition law, which only applies if the advertising is relevant in the German market.

With regard to European law, the “market place principle” takes a back seat to the “country of origin principle”. The EU Electronic Commerce Directive stipulates that advertising is subject to the rules of the country of origin. In this context, German competition law may soon no longer be applicable to foreign companies operating on the Internet.