CURRENT SITUATION OF LAW WITH REGARDS TO PROTECTION FOR CHILDREN IN THE ONLINE ENVIRONMENT

1. ISSUES

Recently, the media has continuously reported many cases of children following online videos which adversely affected their mentality, health or even lead to death. For instance, a recent incident on June 10, 2020, where a male student in grade 11 in Quynh Luu (Nghe An) hid a 5-year-old baby in the forest, leading to his death because of immitating an online game was frightening[1]. Or another case where a 9-year-old girl, who immitated a video on Youtube, swallowed a 6cm long nail clipper in her stomach[2]. Or a case where a 5-year-old girl who lost her life after watching and following a video tutorial on "strangling but still breathing" on Youtube that happened recently in Ho Chi Minh City[3] ...

 

The above examples are just a few from unlimited negative impacts of the internet on children. That should sound a wake-up call for parents, schools, and authorities to take action to help clean up the online environment and protect children from negative impacts, which is very necessary nowadays. Although the matter of protecting children in the online environment has been legislated such as in the Law on Information Technology 2006, the Law on Children 2016, the Law on Press 2016, the Law on Cybersecurity 2018, but the regulations are still vague, has not been widely disseminated, lead to infrequent application and missing legal grounds to punish violations … Therefore, strengthening the legal regulations on this issue should be foremost prioritized.

 

2. Vietnam regulations on protection for children in the online environment

 

Clause 3, 4, Article 4 of the Law on Information Technology defines: Network environment is a environment in which information is provided, transmitted, collected, processed, stored and exchanged through information infrastructure. (telecommunication networks, Internet, computer networks and databases).

 

In 1997, Vietnam started to provide internet services and at simultaneously, the Vietnamese internet officially joined the global Internet. Although the arrival of the internet in Vietnam is about 7-8 years later than the world and about 3-4 years later than some countries in the region, but Vietnam has quickly become a country with the fastest internet growth rates in the region and among the highest internet growth rates in the world.

 

According to statistics at the beginning of January 2020, Vietnam's population reached 96.9 million people. In which, there are 68.17 million people using internet services, accounting for 70% of Vietnam's population, of which children account for one-third of the total number of users[4].

 

With the complicated growth of cybercrime against children, Vietnam has made great efforts to care and protect children, especially in the fight against negative impacts from the cyber environment. The evidence is that Vietnam has acceded to most international treaties on children protection such as the International Covenant on Civil and Political Rights (ICCPR - Vietnam joined on December 24, 1982); Convention on the Rights of the Child 1989, signed on January 26, 1990, ratified on February 28, 1990 and two Additional Protocols on Children in Armed Conflict (signed on September 8, 2000, ratified on 2012-2001) and against the use of children in prostitution and pornography (signed on September 8, 2000, ratified on December 20, 2001) and promulgated many legal documents to create a solid "shield" protecting children when participate in the online environment. The Information Technology Law 2006[5], the Children's Law 2016, the Press Law 2016[6] and most recently the Cybersecurity Law 2018[7] have specific provisions on the protection of children in cyberspace. Particularly, the Law on Children 2016 has specific regulations and implementation guidelines for this issue.

 

The legal document directly provides for children protection is the Children Law 2016, which took effect from June 1, 2017.

 

The Children Law 2016 defines that a child is a person under the age of 16[8]. The law prohibits the publication and disclosure of information about children's private life and personal secrets without the consent of children aged from full 7 years or older and of their parents and guardians; It is strictly forbidden to provide Internet services and other services; Producing, copying, circulating, operating, distributing, possessing, transporting, storing, trading in publications, toys, games and other products that are intended for children with content that could affect the healthy development of children[9].

 

Article 54 of the Law on Children also provides for the responsibility to protect children in the online environment. Accordingly, relevant agencies and organizations are responsible for propagating, educating and protecting children when participating in the online environment in any form; Parents, teachers and caregivers of children are responsible for educating children in knowledge and skills so that children can protect themselves in the online environment; Agencies, organizations and individuals that manage and provide information and communication products and services and organize activities in the network environment must take measures to ensure safety and confidentiality of private life for children in accordance with the law. The Law on Children has also assigned the Government to provide further guidance on these regulations.

 

On that basis, on 09/5/2017, the Government promulgated Decree No. 56/2017/ND-CP guiding Law on Children 2016.

 

This decree devoted Chapter IV, consist of 05 Articles from Article 33 to Article 37 to provide for responsibility to protect children in the cyberspace, including: protect the confidentiality of children's private life information; communicate, educate and build capacity on children protection in the online environment; safety measures for children in exchanging and providing information on the network environment; measures to protect confidential information of children's private life in the online environment; Measures to support and intervene for children abusive behaviors in the online environment.

 

3. Practical application of regulations on children protection in network environment

3.1. Some common harms of the online environment to children

 

As a general principle of all things, the Internet also impacts children in both ways, positively and negatively. On the positive side, the Internet provides a huge store of vivid and easy-to-find knowledge for healthy learning and entertainment; provide a connection environment to share information quickly and widely.

On the contrary, regards to the negative side, the Internet is also a huge repository of "garbage", including malicious information that might affect children's perception, thinking and health if they’re not properly protected.

Currently, there are 6 common risks of abuse on social networks for children.

 

Firstly, children are exposed to too much fake information online.

The internet environment is a vast information world, which also includes malicious and negative information. Meanwhile, children are subjects with poor ability to filter information, leading to the risks of negative impacts on perception, thinking and even health.

 

Secondly, children might easily get bullied on the internet.

Bullying can happen anywhere and can take many different forms, such as insults; harass, disturb, stalk; news spreading, fabricating, gossiping; identity theft, forgery, impersonation; infringing upon, distorting private life; cheating; isolation, ostracism.

According to psychologists, being bullied online might even cause more severe consequences than being bullied in real life. Because, if bullied in real life, children are likely to forget after a while. But in the case of online bullying, being photographed and spread images online or in the community, the obsession of being bullied will be increasing day by day and many children feel like there is no way out.

On September 4, 2019, UNICEF and the Special Representative of the United Nations Secretary on Violence against Children released the results of a survey, according to which, one-third of adolescents in 30 countries said they were victims of cyberbullying, 1/5 of which reported having dropped out of school because of cyberbullying and violence. According to the same survey, 21% of Vietnamese teenagers participating in the survey said they were victims of cyberbullying and most of them (75%) were unaware of any hotlines or services that could help them in cases of being bullied or experiencing online violence[10].

In the early 2014, the suicide of a 14-year-old girl (known as Amnasia) due to suffering from cyberbullying in Italy shocked the international online community[11].

In Vietnam, in 2015, a 15-year-old female student in Dong Nai was photographed in a sex tape which was posted online by her boyfriend. In merely 2 days, hundreds of thousands of people have watched it and thousands of people shared it. Two days later, the female student committed suicide by drinking herbicide[12]. In 2018, an 11th grader in Nghe An also committed suicide in the pond in her house[13]...

 

Thirdly, the risk of leaking children's personal information.

The leakage of personal information does not only come from children being lured into providing information; participating in online games… but also from adults – when parents see the social network environment as a place to show their love for their children, they upload pictures of their children, school, play grounds,… without the child’s consent.

These information are not allowed to be collected pursuant to many countries’ regulations, however, the collection of these information occur quite frequently in many countries.

With the leaked information, many children are threatned, backmailed, forced to have sex or involve in illegal activities. Some even face the risk of kidnapping or human trafficking…

 

Fouthly, the threat of sexual solicitation or sexual abuse

The trick that subjects often use is to set up virtual chat rooms, set up or join websites and online forums to search for children targets, then drop messages and dialogues to get acquainted. They take fake names and images and make first impression on the children as one who is educated, has a well-off life, understands the psychology of children's interests and is willing to share. After talking for a while with the children about their studies and hobbies, they switch to the topic of gender, sex, and engage the children in watching movies and online pornographic images. Or, recently, there are stories about private group chats related to child abuse, circulating children's images online.

Ms. Lesley Miller - Deputy Head of UNICEF Viet Nam informed that around the world, at any time of the day, there are 750,000 child sexual snoopers online. The number of children sexual abuse images uploaded on the Internet every day is nearly the same, including children under 2 years old. In Vietnam, Ms. Lesley Miller said, children abuse and exploitation is on the rise: “I can't give you an exact number because there isn't enough data - which we will soon fix – but the numbers are growing.”

According to the Department of Children, Ministry of Labour, Invalids and Social Affairs, after nearly 16 years of operation (2004-2020), the National Child Protection Call Center 111 has received over 4 million calls and the number is increasing every year. The rate of calls to Call Center 111 so far has increased by 1.68 times compared to the previous period. In particular, in the first 5 months of 2020, there were more than 230,000 calls to the Call Center seeking for advice, support and intervention.

According to the Ministry of Public Security, the number of cases reported on crimes that this agency receives annually is only about 1,000 cases, however, the proportion of cases of cybercrimes against children is increasing. Criminals are also gradually moving to the online environment[14].

 

Fifth, while surfing the internet, children could easily access to toxic websites which are usually linked with gaming softwares, movies, or videos,… for children

Recently, the media has continuously reported many cases of children following online clips which adversely affected their mentality, health or even lead to death. For instance, a recent incident on June 10, 2020, where a male student in grade 11 in Quynh Luu (Nghe An) hid a 5-year-old baby in the forest, leading to his death because of immitating an online game was frightening. The initial intention was to hide the baby, then he will bring him back as a “hero” saving the baby, but the heartbreaking result was the death of the baby due to starve in several hours. Or another case where a 9-year-old girl, who immitated a video on Youtube, swallowed a 6cm long nail clipper in her stomach2. Her family figured out only when seeing her had serious stomachache, hard coughing, they asked and she told the story. Or the case of a 5-year-old girl who lost her life after watching and following a video tutorial on "strangling but still breathing" on Youtube that happened recently in Ho Chi Minh City3 because of a social network phenomenon called “Momo challenge”.

Previously, the dangerous challenges of the phenomenon “Blue whale” also caused the death of several youngsters  in the world, such as: Russia, England, India,… Particularly in Russia, where the phenomenon originated, from November 2015 to April 2016, there were 130 youngsters died due to these kind of challenges…

The statistics of “What do children search for on the internet” survey done by Kaspersky Lab in 2019 showed that:

• 9% look for entertaining games,
• 10% look for websites,
• 14% look for translation,
• 17% look for harmful content websites such as adult content; alcohol, cigarette, drugs; games; electronic commerce; obscene language; gambling, lottery, lucky draw; violence, weapons,…[15]

For huge revenue from advertisement, channel creators defy all tricks to boost views for their channel, while audience get poisoned mentally by the malicious content which appears to be harmlessly entertaining. However, due to the immaturity in perception combined with the keenness to show their personalities, many children will try to follow dangerous games and phenomenons without concern of the consequence.

 

3.2. Practical application of the regulations on children protection in the online environment

 

Although the protection of children in the online environment has been recognized and legislated in many legal documents, the practical application of which is still confusing, still passive, and does not meet the purpose of prevention for the problem. The reasons are as below:

 

Firstly, although we already had the legal framework to protect children in the internet environment but they are not yet sufficient, many regulations are still vague and not practical.

 

There is no specific regulations to guarantee the confidentiality of children’s personal information. This issue has been legislated into separate laws by many countries in the world and effectively applied.

 

Law on cyber security 2018 has not been guided by any legal documents. Children law 2016 and Decree 56/2017/ND-CP of the Government has provided quite clearly and specifically the rights, supporive measures to protect children in the internet environment but there’s no grounds for punishing violations of the law.

 

Decree 144/2013/ND-CP of the Government dated 29/10/2013 Re. Administrative violations handling with regards to social aid, children protection and care can no longer adapt with new regulations of Children law 2016 but no updates has been made.

 

Secondly, the Children law and related legal documents regulate the provides for children protection in the internet environment. However, these regulations have not been widely disseminated, so far, the awareness and understanding of the community in general and parents in particular on this issue are still quite limited, leading to omission and neglect in protecting their children from the dangers of the online environment. Parents still see the internet as a "nanny" for their children, rely on phones and televisions to entertain their children for many hours a day in return for their freedom to do something else. Thereby, in fact, more and more children are addicted to games, smartphones, and social networks.

 

Adults also use social networks according to their needs and interests, view social networks as a place to express love for their children, the trend of showing children on social networks, unintentionally reveal pictures, children's personal information to the public, exposing their children to many risks which according to the provisions of the Law on Children and Decree 56/2017/ND-CP, these acts must be consented to by children aged 7 years or older or their parents, caregivers…

 

Thirdly, some age groups of children have been omitted and not given sufficent attention

 

According to the Vietnamese dictionary, a child is defined as follows: Biologically, a child is a human being between birth and puberty. The legal definition of a “child” generally refers to a child as a person who has not reached the age of majority.

 

Article 1 of the International Convention on the Rights of the Child, to which Vietnam is a contracting party, reads, “A child is a person under the age of 18, unless the law [of a member state] applies to children regulates the age to specify majority sooner”.

 

In Vietnam, Article 1 of the 2016 Law on Children reads “A child is a person under 16 years of age”.

 

With the above regulations on the age of children, it has "omitted" the group of children - young people from full 16 to under 18 years old according to the International Convention on the Rights of the Child, while this group is in fact at higher risk of being abused and exploited, especially in the network environment and is an important stage to complete the development of mentality and physicality before maturity.

 

Fourthly, in fact, there are still many cases where, because of huge advertising revenue, channel owners defy all tricks to boost their views with videos and information that are harmful to children. For those who post nonsense or offensive content online, the administrative penalty from 10 to 20 million VND (Clause 1, Article 101, Decree No. 15/2020/ND-CP on penalties for administrative violations in the fields of post, telecommunications, radio frequency, information technology and electronic transactions) is not a big trouble compared to the fact that they can earn hundreds of millions, even billions of VND per month from advertising revenue. Some account holders are willing to pay fines and then continue to post unhealthy content online for profit. From the perspective of criminal handling, acts of humiliating and slandering others on social networks can be punished with a penalty of 1 to 3 years in prison (Clause 2, point e, Article 156, the Penal Code amended in 2017). However, many accounts on social networks use fake identity, so the tracking of criminals also poses many difficulties for the authorities.

 

3.3. Laws and experiences from some countries on protection of children in the online environment

 

For a long time, many countries around the world have taken serious legal measures to protect children from "pitfalls" on the internet, including social networks.

 

As early as 1998, the US Congress adopted the Children's Online Privacy Protection Act (COPPA) and 2 years later, the law came into effect. The US Federal Trade Commission (FTC) is tasked with overseeing the implementation of this convention.

 

COPPA includes a series of regulations aimed at protecting children from commercial activities on children's websites. Accordingly, companies and website operators are prohibited from collecting information from children without prior notice and permission of their parents. The revised COPPA, enacted in December 2012 and effective from July 2013, includes a new rule that bans companies from using "digital identifiers such as cookies" to track children and provide advertisements based on the child's behavior. The new rule also forces companies to delete data they collected from children for technology purposes. Heavy fines have been applied to the owner of the social network site Xanga.com. According to the FTC, Xanga.com was fined $1 million in 2006 for repeatedly violating COPPA by allowing children under 13 to sign up for the service without parental consent.

 

In 2015, the EU has adopted new regulations on the protection of personal data, including online children's personal data. With this new regulation, corporations can be fined up to 4% of global annual revenue if they violate the law. Companies that want to use the personal data of children under the age of 16 must obtain consent from their parents or guardians..., according to Europa.eu. The same fine is about to be applied in the UK in a new policy on internet management, expected to be announced on April 8. The Guardian newspaper quoted this draft document that leaders of social network companies must bear legal responsibility individually, including criminal prosecution, if no measures are taken to prevent or remove malicious content, including violence, children abuse...[16]

The US also drafted the Kids Internet Design and Safety Act (KIDS) by legislators Sens. Ed Markey (D-MA) and Richard Blumenthal (D-CT), if adopted, it will force companies like YouTube and TikTok to completely change the way they handle child content on their platforms. The draft law would force websites to limit advertising, remove attractive designs that might keep children spending hours before screen and ensure harmful content is blocked. This draft law specifically targets unboxing videos which are very popular on YouTube. It does not ban these unboxing content but would prohibit YouTube from recommending it to children, thereby greatly limiting the spreading of these videos on the platform. The draft law also aims at the design of websites and applications for children. If adopted, the draft law would ban companies from using automatic features, like automatically play new videos after the current video finishes. This will put an end to appealing designs that keep children spending too much time on the platform.[17]

The issue of protecting the right of personal data is prioritized by many countries of the world and also have been legistated such as Article 12 of the 1948 Universal Declaration of Human Rights (UDHR), the Convention on the Rights of the Child (Article 16), Children's Online Privacy Protection Act (COPPA)…[18]

 

4. Solutions to protect children in the online environment

 

Regarding the protection of children in the online environment, Vietnam has taken practical actions such as: support and intervene to help children victims of abuse, at risk of violence, exploitation, abandonment or neglect or children with extraordinary circumstances and has a national telephone call center 111 to protect children, the Vietnam Association for the Protection of Children's Rights has collaborated with the Asian Children's Rights Alliance to develop a set of documents on "Guidelines for child safety on the internet" with funding from the Regional Office for East Asia and the Pacific UNICEF … and many other programs, plans, measures... But these measures is still somewhat quite passive, and has not met the prevention requirement for this problem. According to Ms. Priscilla Idele, Unicef ​​Acting Director: “You should teach your kids how to use the Internet, just as you teach them how to cross the street. Not to stop them from crossing the street. The role is to teach children how to cross the street safely and responsibly in all situations and take safety precautions to protect themselves.”

 

To achieve such purpose, Vietnam needs a complete legal framework to ensure the deterrence for violations. The author would like to propose a number of recommendations to improve the current legal provisions as follows:

 

Firstly, the legal provisions to protect children in the online environment should be built on the principle of "child-centered".

 

Children must be considered the center of solutions for problems related to children, it is necessary to consult and discuss with children to find ways to solve their problems. Children must be allowed to voice their opinions democratically, let children talk about their worries or issues they need help with. Listening to children to develop regulations will contribute to building regulations in the right direction, comprehensive and with maximum effectiveness.

 

Secondly, concretize responsibilities, obligations and methods of protecting children in the online environment for parents, schools, competent agencies, network service providers, etc. into the law, and at the same time provide for penalties as well as criminal sanctions for specific violations of the law.

 

Thirdly, adding more specific actions that will be administratively sanctioned for violating the provisions of the law on child protection, and at the same time increase the severity of punishment for the purpose of deterrence and prevention. As for the criminal law, it is urgent to increase the severity of punishment for crimes related to children, suspended sentences should not be allowed, and regulate all criminal acts directed at children will be prosecuted even without the request of the child's representative to avoid omission of any child targeted crime which is dangerous to children in particular and society in general.

 

Fourthly, there should be regulations guiding the coordination of agencies, organizations and network service providers to coordinate when detecting unsafe cases in the network environment for local authorities to intervine synchronizedly, fast and timely. From there, cross-sectoral issues can be solved by strengthening cooperation mechanisms for child protection, care, support and education initiatives and interventions combined with performance of monitoring by adequate representation of all parties, including children.

 

Fifthly, the legal system needs more detailed regulations. Urgently issue decrees to guide the implementation of the Law on Cybersecurity, amend and supplement the Decree on penalties of administrative violations for acts related to child protection in general and child protection in the network environment in particular in accordance with the new regulations.

 

Sixth, it is necessary to amend the regulation on the age of children determination in Vietnam to be under 18 years old, instead of under 16 as in present, in order to «reform the legal system on child protection and justice for children of the age 16 to under 18, in order to ensure that all children under the age of 18 have access to services, comprehensive protection and awareness of their rights»[19]. This change recommendation is both in line with the general provisions of the 1990 Convention on the Rights of the Child and the core of the principle of equity - the foundation in the implementation of the Global Sustainable Development Agenda and the goal of “Leaving no one behind” that Vietnam is pursuing[20].

 

Adding or dividing smaller children age groups by the level of need for protection to be compatible with the protection levels as well as ease in control and identify children at risk of or being abused.

 

6. Conclusion

 

The network environment is always expanding, developing and changing unpredictably. Therefore, legal solutions and regulations must always be preventive and prioritize prevention rather than dealing with consequences. At the same time, the implementation of measures must not reduce children's opportunities to learn and explore the internet environment while still ensure two basic rights of children, that is, the right of free expression and the right of privacy. Children are always the object that needs to be cared for and prioritized for protection in society. Providing a holistically safe environment is the best way to protect children.