Today, social network has become the home of many family photo albums. Photos of the new baby, finishing up the first bottle, the first step walking ... parents excitedly share their children with the world. This phenomenon is so widespread that it gives rise to a new word in English - Sharenting, from the words "sharing" (with people) and "parenting", to describe the act of sharing children’s photos on social network sites. Vietnam, in this regard, is no exception. Presenting photos of children on social networks is a common sense in many parents' daily lives. Of course, the number of people asking for their child’s opinion before uploading their photos on facebook can be counted on the fingers of one hand.
Therefore, after the Child Protection Act 2016 came into force (as of June 1, 2017), public opinion in Vietnam was particularly flamboyant, especially parents, as it was stipulated in the article. 6, paragraph 11 that one of the prohibited acts of the law is "the publication, disclosure of information about the private life, personal secrets of children without the consent of children aged 7 years or older or the parent, guardian of children". After that, Decree 56/2017 / ND-CP of the Government promulgated detailed provisions of some articles of the Law on children. Article 33 of the Decree defines "information on personal life, personal secrets" as follows: information about: name, age; Identity characteristics; Information on health status and private life is recorded in the medical record; Personal photos; Information about family members, carers; Personal property; phone number; Personal mailing address; Address, information about whereabouts, origins; Address, school information, grades, learning outcomes and friends' relationships; Information on services provided to individual children ». Accordingly, in the case of parents who give information or pictures within the scope of Article 33, parents must apply for permission to children if the child is 7 years or older.
On the one hand, it must be recognized that these new regulations have the effect of making parents more aware of the privacy of their children. Children are independent entities and should also be respected for their privacy - what is needed for a child to grow in harmony and stability.
However, legally, these regulations are not realistic, and this can be a barrier to protecting the privacy of children online.
Firstly, the definition of "information about private life, personal secrets" of children stipulated in Article 33 of Decree 56/2017 / ND-CP does not cover all aspects of the privacy of children. This Article 33 provides a limited list of information that, if disclosed, must consult with the child. This is a regrettable weakness of this rule, because from which to deduce what information outside this list is not considered information required permission before disclosure. Meanwhile, there are cases of "sensitive" information about the privacy of the children that is not listed in the group of protected information. Likewise, only "information on the state of health and privacy recorded in the medical record" is considered private information, confidential. Then how about "health and privacy" without "medical records"? It is clear that this can significantly reduce the effectiveness of child protection. Moreover, if the information and images of children are protected, Vietnamese law has forgotten the "voice". A recording of children singing, reading poetry or joking, talking must also be considered as private information of the children, and also must have the consent of the children before being posted on public places such as the social networks. The laws of advanced countries such as France, for example, see the "voice" as "personal characteristics" of the individual, thus it is protected same as personal images or information about private life.
The comparison between Vietnamese law and foreign law will reveal more the inadequacy ofVietnamese law in this regard. For example, instead of providing a narrow definition of "private life information, personal secrets" as in the Law on the Protection of Children of Vietnam, French law does not provide a definition of the scope of information protected by "privacy rights", the right of anyone, child or adult. French judges put forward a broad concept: the "private life" elements of the law that protect us are names, images, voices and information relating to the emotional life, family, strength Health, religion, place of residence, income, political choice and so on. In addition, lawyers often put "private lives" in the face of the notion of "public life": what is not in "public life" is considered "private life" and each Individuals have the right to keep the details of this private life from being published in public. Thanks to its broad and flexible concept, French law guarantees a very effective protection of privacy.
Secondly, Vietnamese law stipulates that when children under the age of 7, parents can decide for themselves concerning the publicity and disclosure of information and pictures of children online, and when children are over 7 years old, the parents will need permissions from the child. Getting a 7-year-old to make the decision to decide whether or not, the child's permission is probably not really necessary. The current Vietnamese Civil Code, as well as the Marriage and Family Law Act of 2014, mandate that parents are the representatives of minor children. Therefore, all important decisions regarding the children are decided by the parents, for the sake of the child. In cases where the parents fail to fulfill their responsibilities and behave in ways that affect the child's interests and safety, they may be deprived of the right to act as legal representatives by the court. Therefore, it is recommended that parents of children over 7 years old must consult before disclosing or disclosing information or images online is unreasonable, because parents who represent law for children have the right to decide. Whether disclosure, disclosure is in the interests of the child or not. Although it is possible to understand this rule in order to raise the awareness of parents, in a rational and uniform manner, the law is probably not convincing, let alone practical application. (Whether the child's permission is to be in writing or perhaps only verbally, difficult to obtain proof of permission or not allowed, etc.).
Thirdly, it is certain that in the future there will be cases where children will give permission at the time of publishing, but when they grow up they no longer want their photos or "sensitive" information to be available online, therefore there is still no solution. That is why lawmakers need to think of introducing a "right to be forgotten" law, a right recognized by European Union law that allows the removal of "sensitive" content online related to personal life. At present, France's Digital Republic Act of 2016 also allows children under the age of 18 to be permitted to exercise "forgotten rights" to require social media service providers or media networks to rapidly remove any content related to the private life posted previously, even if the content has been submitted with the consent of the past. California law called Eraser Law ("Removal Act") in effect from 2015 also allows children under the age of 18 to request the removal of personal-related content that is present on the Internet. .
Because Vietnamese law is not reasonable enough, when entering into force, there are many conflicting ways in public opinion, as many people believe that only when the information, sensitive images bring negative impacts to the psychology and the interests of children then they will be prohibited to post without the permission of the child. In fact, the right applied for images of children, as well as this right of adults, are independent of these criteria. In principle, images of anyone can not be posted online without the consent of that person. In the case of children, parental consents are required, as parents are legal representatives for children.
Although Article 6, Clause 11 of the Child Protection Act of 2016, in conjunction with Article 33 of Decree 56/2017 / ND-CP, aims to better protect the rights of children. In reality, until now there are no laws to sanction violations of Article 6, Clause 11. Therefore, it is necessary to review these provisions to better implement the rights of children in Vietnam.
Le Thi Thien Huong – Research Fellow in Internet & Law - Public Governance, VPIS
Child Protection Act 2016, Article 6, Paragraph 11: Prohibited behavior To publish, disclosing information about the private life and personal secrets of children without the consent of children aged 7 years or older and of parents, guardians of children.
Decree No. 56/2017 / ND-CP
RESPONSIBILITY TO PROTECT CHILDREN IN NETWORK ENVIRONMENT
Article 33.- Information on confidentiality of private life and personal privacy of children
Confidential information of personal life, personal privacy of children is information about: name, age; Identity characteristics; Information on health status and private life is recorded in the medical record; Personal photos; Information about family members, carers; Personal property; phone number; Personal mailing address; Address, information about whereabouts, origins; Address, school information, grades, learning outcomes and friends' relationships; Information on services provided to individual children.
Article 34.- Communication, education and capacity building on the protection of children in the network environment
1. The State management agency in charge of information and communication; On education and training; On vocational education; About children; Organizations that work for children; Organizations that operate in a network environment are responsible for communication, awareness raising, capacity building, skills dissemination for parents, caretakers, teachers, children and agencies and organizations. Concerned about the negative impact of the network environment on children; Regarding the prevention and prevention of acts of infringing upon children in the network environment according to law provisions on information technology, information safety and relevant domains.
2. Parents, teachers, caretakers have the responsibility to educate children's knowledge and skills on safety skills when participating in the network environment; Children have a duty to learn, to learn and to practice their self-protection skills when participating in the network environment.
3. Organizations and enterprises providing services in the network environment must guide the use of services, use information technology equipment and access information to protect children in the network environment.
Article 35.- Ensuring the safety of children in the exchange and provision of information in the network environment
1. Agencies, organizations and individuals participating in activities in the network environment must coordinate with competent state agencies and other organizations and individuals in ensuring the information safety of children in the environment. bring; Prevent information harmful to children in accordance with the law on information security network.
2. Enterprises dealing in or providing services in the network environment must take measures to use the service of protecting the users being children.
3. Enterprises dealing in or providing services in the network environment must warn or remove information or services harming children, information or services forging, distorting or infringing upon their legitimate rights and interests. The dharma of children.
4. Enterprises providing online video game services in the network environment must have tools to control time, protect children from abuse and addiction to video games.
5. Organizations, enterprises and individuals that operate or provide services in the network environment must build, use or popularize software and tools to protect children in the network environment.
Article 36. Measures to protect confidential information of private life for children in the network environment
1. Agencies, organizations and enterprises providing services in the network environment and individuals, when submitting information on children's private life, must go through the consent of their parents, carers Children and children aged full 07 years and over; It is responsible for ensuring the safety of children's information.
2. Agencies, organizations and enterprises providing services in the network environment must use measures and tools to ensure the privacy of children's private life information and warning messages. When children provide, change secret information private life of children.
3. Parents, caretakers, children aged full 07 years and older and agencies, organizations and individuals responsible for child protection as prescribed by law may request agencies, Service providers and individuals engaged in networking activities remove the confidentiality of the private life of the child in order to ensure the best safety and best interests of the child.
Article 37.- Measures to support or interfere with infringement of children in the network environment
1. The State management agency for information, communication and state management of children; Organizations, enterprises operating and providing services in the network environment have the responsibility to organize the reception, evaluation and classification of the level of child safety by agencies, organizations, individuals and children. I sent to; Publish a list of online information, services and products on a child safety level; Ensure the detection, removal of images, materials, information is inappropriate for children.
2. The public security organs shall be responsible for organizing the implementation of measures to support and intervene in the protection of children in the network environment.