In Search of Legitimation: The Dynamic Tensions in the Regulation of Privacy and Data Rights in Vietnam
Chair(s): Toan Le (Swinburne University of Technology/University of Economics, Ho Chi Minh City, Vietnam)
Writing about a so-called ‘authoritarian privacy’ regime in China, a modern-day socialist regime in East Asia, Professor Mark Jia argued that
'China’s turn to privacy law should be understood more centrally as a story of popular legitimation. The party-state’s turn to privacy law reflects a kind of authoritarian responsiveness, an effort to co-opt privacy by framing the party-state as the principal defender of privacy rights'.
Professor Jia’s writing shocked the privacy scholarship with awe, primarily due to his explanation of how a state’s recognition of citizens’ privacy rights and legal protection can occur even in an authoritarian system. Equally important, however, is his conception of ‘popular legitimation’–the socialist party-state utilizing privacy protection regimes as a form of justification to portray itself as the ultimate defender of citizens’ privacy while secretly facilitating subtle digital abuses under that discourse. Such legitimation is perilous, as it distorts the universal understanding of privacy as a human right, enticing citizens to accept the state’s definition (through both discourses and actions) of privacy and undermining the values protected by universal privacy norms.
The concept of ‘legitimation’ aligns with Max Weber’s ideas about legitimacy and authority in the context of law. Weber suggests that state actions, as defined by law, gain legitimacy from the law itself, irrespective of its content, provided the law is made rationally. Legitimacy stems from the rational authority of the law, and based on this legitimacy, the state asserts control over society. As long as the law is supported by an established ideology, the state can wield authority grounded in legitimacy.
Four years before Professor Jia’s essay, Dr. Emmanuel Pernot-Leplay published an article warning about the rise of a ‘third approach’ to privacy law, separate from the American and continental European models. As Professor Jia’s writing confirms, this approach centralizes privacy enforcement and supervisory authorities under a single party-state system, leaving a high risk of totalitarian control and abuse.
What is interesting is that China is not the only player in the legitimation game. What is of issue is that this ‘approach’ is gradually being mirrored in a neighboring socialist party-state: Vietnam.
Digital transformation is occurring at a dizzying pace in Vietnam under the directions of the Party-State in Vietnam. As much as the digital revolution offers opportunities to citizens, it also poses the risks of abuse. The need for regulation of data and privacy rights in light of the digital abuses occurring in society is justifiable, and the Party-State in Vietnam has taken swift actions.
A new national identity system that combines fingerprint and face recognition technologies to enhance security and a directive to private and state-owned banks to collect highly sensitive data and provide access to such data to the State are just two of the actions currently being implemented. The massive collection of data has been justified on the grounds that the Party-State is making laws to protect the citizens and consumers from the threats of digital abuse.
The Party-State insists that the collection of data is required to enhance personal and national security. However, there have been few public consultations, and concerns about privacy have been quietly made by some actors. The result is that there are dynamic tensions between state and non-state actors in the regulation of data and privacy rights in Vietnam.
The papers in this panel will explore the approach to regulating data and protecting privacy rights. It will address issues relating to ‘data propertization’ and privacy rights, the latter is itself a contested concept in Vietnamese society. The presenters will focus on the ability of the Party-State to legitimize its laws and regulations and analyze the sources of legitimacy that it draws on. Arguably, such ‘legitimation’ is not only happening in the areas of data protection; it even expands to other matters such as crypto-assets and financial regulation. The panel will analyze the complex roles the Party-State is playing in different areas of regulation and its attempts to use law as a basis to further its legitimacy in governing Vietnamese society.
Presentations of the Symposium
Digital transformation and personal autonomy amid the authoritarian governance: An analysis of Vietnam’s 2024 Data Law
Thiem Hai Bui
Institute for Legal Studies and Legal Aid
As the era of digital transformation has accelerated at a high speed across the world, there are increasing concerns over the vulnerabilities and risks for human rights. One of the key concerns is centered around personal autonomy in light of the intimate technological revolution. In the context of widespread digital surveillance, constant data collection, and the growing power of tech companies and authoritarian governments vis-a-vis societies, a fundamental human right to personal autonomy and to make informed decisions regarding one’s private information has been at risk. The massive collection of personal data, including sensitive data like health, location, and communications, often without individuals' full consent or awareness of what data is being collected, how it’s being used, or who has access to it raises the question of justice and moral responsibility about the control and ownership of data and make informed decisions in this era. As digital technologies evolve, it becomes increasingly clear that people need stronger frameworks to ensure they have meaningful control over their personal data, as well as access to transparent processes that respect their rights. These issues are reflected and analyzed in the case of Vietnam’s Data Law promulgated in 2024.
Keywords: Digital Transformation, Digital Surveillance, Personal Autonomy, Governance, Intimate Technology
Everyone is safe now: constructing the meaning of data privacy regulation in vietnam
Tu Thien Huynh
Monash University/University of Economics, Ho Chi Minh City, Vietnam
This paper explores Vietnam’s distinctive approach to data privacy regulation and its implications for the understanding of privacy law. While global data privacy regulations are premised on individual freedom and integrity of information flows, the recent Vietnamese Decree 13/2023/NĐ-CP on Personal Data Protection (herein PDPD) prioritizes state oversight and centralized control over information flows to safeguard collective interests and cyberspace security. The fresh regulatory logic puts data privacy under the regulation of government agencies and moves the privacy law arena even further away from the already distant judicial power. This prompts an exploration of the nuances underlying the ways regulators and the regulated communities understand data privacy regulation. The article draws on social constructionist accounts of regulation and discourse analysis to explore the epistemic interaction between regulators and those subject to regulation during the PDPD’s drafting period. The process is highlighted by the dynamics between actors within a complex semantic network established by the state’s policy initiatives, where tacit assumptions and normative beliefs direct the way actors in various communities favor one type of thinking about data privacy regulation over another. The findings suggest that reforms to privacy laws may not result in “more privacy” for individuals and that divergences in global privacy regulation may not be easily explained by drawing merely from cultural and institutional variances.
Keywords: Data Privacy, Regulatory Communities, Collective Interests, Social Constructionist, Epistemic Interaction
Not-Too-Late for Data Propertization in Vietnam: Trends, Blockages and Proposals
Khoi Trong Dao
Faculty of Civil Law, University of Law, Vietnam National University, Hanoi
Data has become an increasingly vital asset in the global wave of digitalization, capturing the attention of enterprises, societies, and nations worldwide. This growing significance has driven the trend of ‘data propertization’, a process denoted by governmental policies to fine-tune existing legal frameworks to recognize data as a form of property subject to collection, exploitation, and transfer for commercial purposes. While the concept itself is no novel globally, achieving a standardized approach to data propertization remains challenging for various reasons. While the economic value of data is undisputed, debates persist regarding its legal characteristics, including its nature, ability to be possessed and transferred, and the property rights that can be established over it.
For a developing country like Vietnam, formulating policies and laws addressing data propertization's complexities poses even greater challenges. Vietnam has made efforts to establish a legal framework for data governance, but these efforts primarily emphasize personal aspects of data rather than focusing on its economic and proprietary dimensions. Meanwhile, the Vietnamese property law framework has several ambiguities, from fundamental legal doctrines and definitions to the system of real rights, appearing to be ill-prepared to confront challenges posed by such a difficult-to-define, complex, and interconnected asset as data.
To address these critical issues, this paper aims to examine the conceptualization of ‘data’ in property law and the concept of data propertization, before exploring the rising trends in data policy and the regulatory frameworks being developed to support the emergence of a data industry in Vietnam. Afterward, the paper delves into the unresolved legal challenges within Vietnam's property law and laws governing data, highlighting the limitations that hinder the recognition of data as a property. Finally, the study provides a set of general approaches drawing on international practices and the local specific needs that should be taken for Vietnam and similar developing countries in perfecting their property law in this evolving global data-driven world.
Keywords: Data, Data Propertization, Vietnam, Property law, Data Governance
Exploring changes in vietnam’s crypto-assets regulation: networks, nodes, and gravity
Khanh Thuy Le
Swinburne University of Technology, University of Economics Ho Chi Minh City,
Vietnam is emerging as a popular destination for crypto-asset investments, both regionally and globally. It consistently ranks among the top five countries in terms of profits generated from cryptocurrencies and other like assets. However, the legal status of crypto-assets in Vietnam remains uncertain. This is not only due to Vietnam’s fragmented property framework but also because the state’s approach to crypto-assets has fluctuated. This raises the question of what dynamics drive such change. This paper explores the regulation of crypto assets in Vietnam as a response to their disruptive effects on the existing regulatory framework. Drawing from the theory of network communitarianism, a Vietnamese crypto-assets regulatory regime is imagined as an analytically constructed ‘space’ constituted by different networks of state and non-state actors. These actors employ different discursive strategies to participate in the policy processes and shape the cognitive and normative assumptions toward crypto-asset regulation. The paper suggests an insight that networked, discursive interactions between state and non-state actors underpin the state’s shifting attitude towards crypto-asset regulation, reflecting an internal struggle between different ideas of property, market, and state regulation of the economy.
Keywords: Legal Charaterisation, Cryto-Asset Regulation, Data as Property, Network Communitarianism, Discursive interactions
Promoting innovative technologies and addressing privacy concerns in green finance in vietnam
Tram Anh Ngoc Nguyen
University of Warwick/University of Economics, Ho Chi Minh City, Vietnam
Sustainable development goals are on the agenda to mitigate the severe effects of climate change and environmental crises on the global economy and society. Green finance is one of the key financial tools aimed at achieving the green growth goals that Vietnam has committed to in the national strategy for the 2021-2030 period, with a vision toward 2050. The promotion of innovative technologies in green finance also raises privacy regulations issues. Vietnam lacks a dedicated legal framework for data protection tailored to address problems in the financial industry, including green finance. This could lead to the misuse of sensitive financial and environmental data. This paper examines the current framework for the marriage of technology and finance toward sustainability goals. Several issues related to privacy, data protection, and liability will be addressed and the solutions are explored.
Keywords: Green Finance, Environmental Data, Data Protection, Privacy Rights, Legal Framework
