MỘT SỐ VẤN ĐỀ PHÁP LÝ VỀ TỘI 'QUẢNG CÁO GIAN DỐI / SOME LEGAL ISSUES REGARDING THE CRIME OF "FALSE A

In a market economy, advertising serves as a crucial tool to promote consumption and foster competition in goods and services. However, the misuse of advertising to disseminate misleading or deceptive information poses significant legal risks and negatively impacts consumer rights. To address such conduct, the law provides for criminal liability in cases of false advertising of goods or services, as stipulated in Article 197 of the Penal Code 2015, as amended and supplemented in 2017.

1. Constituent Elements of the Crime of False Advertising

Subject of the Crime

The subject of this crime is determined in accordance with the provisions of the 2015 Penal Code. Only individuals aged 16 or older may bear criminal liability for this offense. Although this is not a crime requiring a special subject, it is commonly committed by business owners, household business operators, and commercial legal entities. However, other individuals may also be deemed offenders if they carry out false advertising at the request of such business owners. Moreover, criminal liability for false advertising only arises if the offender has previously been administratively sanctioned for the same act or convicted of this crime and has not yet had their criminal record expunged, but continues to commit the offense. Notably, consequences are not a mandatory element of this crime’s constitution. Nevertheless, the potential consequences of false advertising are broad, including serious harm to human life, health, dignity, honor, and property, as well as damages to organizations and society at large. Given that consequences are not a constitutive element, criminal liability only applies in the aforementioned cases of repeat violations.

Object of the Crime

The object of this crime is the State’s regulatory order over economic management, specifically its legal regulations on the advertisement of goods and services. The directly affected subject matter is the form and content of information about goods and services that the offender has advertised.

Objective Aspect of the Crime

Firstly, advertising is defined as the use of various means to introduce to the public profit-oriented or non-profit products, goods, services, or the organizations and individuals conducting such business activities—excluding news, social policies, and personal information.
The objective element of the crime is manifested in the act of false advertising, meaning the dissemination of incorrect information regarding the quality, appearance, function, utility, or standards of goods or services, leading to consumer confusion and violating advertising regulations. These acts may be carried out through diverse methods such as drawings, photography, filming, audio recordings, newspaper publications, radio/TV broadcasts, or placing advertisements in public spaces.

Secondly, in determining false advertising, it is essential to rely on the legal provisions of the State concerning advertising. False advertising infringes upon the State’s management over the advertising of goods and services and harms consumer interests. The subject of the offender's actions remains the form and content of the information related to the goods or services advertised.

Thirdly, although consequences are not a compulsory element in the constitution of this crime, it is still necessary to determine the extent of damages caused to evaluate the nature and severity of the offense. These may include serious harm to human life, health, dignity, honor, property, and broader societal interests.

Fourthly, false advertising occurs when a trader or individual promotes goods in a manner inconsistent with their actual nature. Typically, it involves advertising inferior or substandard goods as being of high quality. It may also involve disparaging the products of other businesses to promote one’s own goods, misrepresenting product functions, or omitting essential warnings or usage restrictions.

Fifthly, other objective elements prescribed in the crime's constitution may include: the goods or services listed as subject to advertising regulations; the timing and location of the advertisement; the form of advertisement; the wording, imagery, or sound used; and the misuse of names or positions of organizations or individuals for advertising purposes.

Subjective Element of the Crime

The fault of the offender in the crime of false advertising is intentional. This means the offender is fully aware that their advertising conduct is deceptive, unlawful, and contrary to the legal provisions on advertising, and that such conduct may lead to serious consequences. The offender either deliberately desires such consequences or, while not desiring them, consciously disregards their occurrence.
Although motive is not a mandatory element in the constitution of this crime, offenders of false advertising are usually driven by the motive of self-interest—seeking to increase sales by providing false or misleading information about the quality or functionality of products.

Additionally, criminal liability only arises when the individual has previously been subject to administrative sanctions for the same act, or has been convicted of this crime and has not had their criminal record expunged but continues to reoffend.

Applicable Penalties

When all the constituent elements of the crime are present, the offender shall be subject to a primary penalty ranging from a fine of VND 10,000,000 to VND 100,000,000, or non-custodial reform for up to 03 years.

In addition, the offender may also be subject to one or more supplementary penalties, including: A fine ranging from VND 5,000,000 to VND 50,000,000; A prohibition from practicing certain professions or performing certain jobs for a period of 01 to 05 years.

From the above provisions, it can be seen that the penalties for the crime of false advertising include principal penalties such as fines and non-custodial reform, and supplementary penalties such as additional fines and prohibition from engaging in certain professions or occupations.

2. Some Practical Manifestations of False Advertising Acts

Some practical manifestations of false advertising acts that are commonly encountered in today's life include: advertising dietary supplements as if they were medicines, despite not being certified by competent authorities; advertising goods of unclear origin while labeling them as “genuine imports” or “hand-carried items”; providing exaggerated information about the efficacy of cosmetics or beauty services, such as “completely eliminate melasma after one week”, “skin rejuvenation without surgery”; using celebrities (KOLs, influencers) to endorse or authenticate products they have never used or have not verified in terms of origin and effectiveness. In addition, many advertising campaigns also employ disguised PR techniques, concealing the commercial nature of the content in order to manipulate consumer trust. These manifestations not only violate advertising regulations but also pose significant risks of causing damage to consumers’ property, health, and legitimate interests.

In practice, the application of criminal law provisions to the offense of “false advertising” still faces many difficulties, especially in proving the element of deceit and the resulting damages such as:

Difficulty in proving deceitful elements:

Proving the element of "deceit" in the crime of false advertising is one of the major challenges in the practical application of the law today. Deceit in advertising is not only limited to clearly false information, but also includes more sophisticated forms such as exaggeration, ambiguity, concealment of information, or the use of misleading language that can confuse consumers. In many cases, the content of the advertisement is not completely false, but still sufficient to mislead recipients about the use, quality, or features of the product. This requires the investigating authorities to have sufficient expertise and technical tools to assess the accuracy and truthfulness of the advertisement content, especially for products with specific characteristics such as dietary supplements, cosmetics, or medical devices. The vague boundary between "deceitful" and "inaccurate" makes criminal handling difficult, potentially leading to undetected violations or legal disputes over the legitimacy of advertising content.

Difficulty in identifying consequences:

Determining the consequences in the crime of false advertising is also a major difficulty in the practical application of criminal law, because the legal provision requires proof that the offender gained illegal profits of VND 50 million or more, or caused damages of VND 100 million or more to others in order to be prosecuted. However, in reality, accurately calculating the amount of consumer losses or the illegal profits earned by the violator from false advertising is not easy, especially when the act is committed through online channels, without clear invoices or documents, or distributed via collaborators or intermediary agents. Furthermore, damages to consumers are often small, dispersed, hard to compile, or related to health and psychology which are difficult to quantify in monetary terms. These barriers result in many cases with obvious signs of violation being handled only through administrative sanctions, reducing the deterrent effect of criminal law against false advertising.

Legal gap in handling KOLs/Influencers:

Currently, a significant legal gap in Vietnamese law is the lack of specific regulations on the responsibilities of KOLs (Key Opinion Leaders) and influencers when participating in advertising activities, especially in the context of the strong development of social media as a popular means of reaching consumers. In reality, many KOLs accept payment to promote products without verifying the content of the advertisements, and even provide misleading information, causing serious misunderstanding among the public. However, since they are not directly identified as subjects legally responsible for advertising activities, handling their violations remains inconsistent, mostly limited to reminders, warnings, or indirect administrative sanctions. The lack of clear regulations not only makes it difficult for authorities to protect consumer rights but also creates loopholes for false advertising to persist, negatively affecting the business environment and public trust.

3. Conclusion:

To improve the effectiveness of preventing and combating false advertising, it is necessary to complete the legal system in a comprehensive, clear, and practical manner. Firstly, Article 197 of the Penal Code should be amended and supplemented to broaden the scope of handling false advertising acts that cause no serious consequences but pose a high risk of social harm, while also clarifying the legal responsibilities of celebrities, KOLs, and influencers in product promotion. In addition, a better coordination mechanism between competent authorities such as the Ministry of Industry and Trade, the Ministry of Health, and the Ministry of Information and Communications is needed to control and supervise advertising activities, especially on digital platforms and social networks. Moreover, increasing legal awareness among businesses and consumers regarding advertising responsibilities, combined with the timely and strict application of sanctions for violations, will contribute to ensuring deterrence and general prevention in society.