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 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 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 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 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 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 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.
Lê Trần Như Tuyên LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com TABLE OF CONTENTS INTRODUCTION. 1 Chapter 1: OVERVIEW OF THE DIGITAL AGE AND THE RIGHT TO PRIVACY 7 1. The Digital Age. The Right to privacy.
Right to privacy in the International Human Rights Law. The need for legislation of privacy in Digital Age. Right to privacy laws in other countries. The United States data privacy.
44 Chapter 2: THE RIGHT TO PRIVACY IN DIGITAL AGE IN VIETNAM. The impacts of Digital Age on privacy in Vietnam. Legal framework on privacy in Digital Age. Privacy stipulated in Vietnamese Constitution.
Privacy in some specialised laws. Discussion on the challenges and gaps of the protection of the right to privacy in Vietnam. Social and cultural challenges. 91 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.
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 1 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 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 2 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 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 của pháp luật Việt Nam‖, Hanoi Law University.
- Thái Thị Tuyết Dung (2012), Monograph ―Quyền tiếp cận thông tin và quyền riêng tư ở Việt Nam và một 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 toàn thư tín, điện thoại, điện tín của công dân trong pháp luật quốc tế và pháp luật Việt Nam‖, Legal Science Journal 2/2014, p. - Nguyễn Thị Huyền Trang (2014), Master‘s thesis ―Quyền được bảo vệ đời tư trong pháp luật quốc tế và pháp luật Việt Nam‖, School of law – VNU Hanoi. - Lê Văn Sua (2016), Research topic ―Quyền bí mật đời tư cần được hướng dẫn cụ thể‖, Vietnam Lawyers magazine 5/2016, p.
- Hoàng Lê Minh (2016), Master‘s thesis ―Quyền bí mật đời tư trong Hiến pháp năm 2013 và thực tiễn tại Việt Nam‖, Hanoi Law University. 3 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com - Vũ Công Giao, Phạm Thị Hậu (2017), Research topic ―Pháp luật bảo vệ quyền bí mật dữ liệu cá nhân trên thế giới và Việt Nam‖, State and Law Review 2/2017, p. - School of law – VNU Hanoi (2018), Monograph ―Quyền về sự riêng tư‖, National political publishing house, Hanoi. In other countries: - Bratman B.
(2002), Research topic ―Brandeis and Warren‘s the Right to Privacy and the Birth of the Right to Privacy”, Tennessee Law Review, Vol. (2002), Research topic ―Conceptualizing privacy‖, California Law Review, Vol. (2011), Monograph ―Nothing to Hide: The False Trade- off 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 Internet- of-Things and Fog Computing‖, Wireless Communications and Mobile Computing journal 24 September 2018, p.
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. 4 LUAN VAN CHAT LUONG download : add luanvanchat@agmail. The Purpose and Mission of the Study 3.
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. 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 5. 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, 5 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com inherits the results of the works of the earlier authors to clarify the objectives and tasks of the thesis. Scientific and practical significance of the thesis The first step is to understand basic theoretical 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, clarify the current situation of privacy and some urgent issues in the implementation of protecting the right to privacy under Vietnamese Laws. Finally, attempts to find some suitable and feasible orientations and solutions to contribute to protecting the right to privacy in a more effective way. The result of this study will provide scientific arguments on the right to privacy to contribute to protecting this right in accordance with the laws in new era.