Khóa luận tốt nghiệp: Civil rights of minors infringed in cyberspace

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VIETNAM NATIONAL UNIVERSITY

Hanoi - 2022

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LETTER OF DECLARATION

I hereby declare that the Graduation thesis “Civil Rights of Minors Infringed in Cyberspace” is the result of my own honest research under the guidance and supervision of Dr. Ngo Thanh Huong. All references presented in this thesis are for analysis, comments, and evaluations from various resources have been clearly cited in the reference part according to regulations.

I take full responsibility for the fidelity of the number and data and other contents of my graduation project.

Hanoi, 20th, May 2022

Le Thi Mai Huong

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1.1. Some basic concepts ... 8

1.1.1. The concept of minors’ civil rights ... 8

1.1.2. The concept of cyberspace ... 10

1.1.3. Classification of minors’ civil rights in cyberspace ... 11

1.2. Typical infringing acts on the minors’ civil rights in cyberspace ... 15

1.3. The relationship between the minors’ civil rights in cyberspace and Internet freedoms ... 17

1.4. The laws of some countries on the minors’ civil rights infringed in cyberspace ... 20

2.1.1. The right of an minors over his/her image ... 26

2.1.2. The right to protection of honour, dignity and reputation... 28

2.1.3. The right to private life and personal and family secrets ... 29

2.2. Practice of implementation of the law on minors’ civil rights infringed on cyberspace ... 31

2.2.1. An overview of the infringement of minors’ civil rights in cyberspace in Vietnam ... 31

2.2.2. Limitations and causes of limitations in the implementation of the law on minors’ civil rights infringed in cyberspace ... 35

CHAPTER 3: ... 40

COMPLETING VIETNAMESE LAW ON THE CIVIL RIGHTS OF MINORS INFRINGED IN CYBERSPACE ... 40

3.1. Some legislative solutions... 40

3.2. Other solutions to improve the effectiveness of the implementation of Vietnamese law on minors’ civil rights infringed on cyberspace ... 43

CONCLUSION ... 46

REFERENCES ... 47

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INTRODUCTION

1. The urgency of the subject

Vietnam is one of the 20 countries with the highest number of Internet users globally. According to We Are Social’s Digital 2021 Report on Internet use in Vietnam, by early 2021, Vietnam’s population had reached more than 97 million people and contained 68.72 million internet users, accounting for more than 70% of the population. Users access the Internet through mobile devices, up to 94.3% of the total number of Internet users. Users in Vietnam spend an average of 6 hours 47 minutes per day accessing the Internet, of which 2 hours 40 minutes are spent watching TV and streaming, 2 hours 21 minutes are spent on social networks, 1 hour 57 minutes reading newspapers and other activities.1

Vietnamese children and young people have early access to new information and communication technologies. The Vietnam NetCitizens Report 2011 on Internet usage and development speed showed that 95% of Vietnamese Internet users are aged 15-24.2 This report also shows that the percentages of websites that are used mainly by this group of people include: Google (60%), Zing (32%), Yahoo (34%), Facebook (13%). Although there have been many changes so far and there are no specific statistics on the percentage of children and young people using the Internet, students must learn online within the past two years due to the COVID-19 epidemic. Hence, it is believed that the number of minors accessing the Internet at an early age has increased dramatically. Minors are leading the way in approaching information and communication technology in Vietnam, and it will create conditions for them to increase personal development. However, it also means they will have many negative experiences in cyberspace, including having their civil rights violated.

With the above real situation, it is believed that the law on the civil rights of minors infringed in cyberspace always plays a vital role in ensuring their safety. Although the provisions of Vietnamese civil law have made positive changes, they still face many challenges because of the rapid development of the Internet and the variety of violations of civil rights in Vietnam. It is for this reason that I chose the topic:

1 We Are Social, Hootsuite (2021), Digital 2021 Vietnam, Datareportal 2021-vietnam

Cimigo (2011), the Vietnam NetCitizens Report 2011, netcitizens-report-2011-vietnamese/

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“Civil Rights of Minors Infringed in Cyberspace” to carry out the graduation thesis,

so that I can have an overview of the theory, practice and limitations of the law on this issue, at the same time provide recommendations to complete the law.

2. The research situation

Through the research process, I realized that the topic related to child protection in cyberspace is not new, and much research was done years ago. However, recently, due to the rapid development of information and communication technology, and the use of the Internet among young people has increased significantly, the topic has received more and more attention. However, specific research on the civil rights of minors infringed in cyberspace is still limited. Some related research works can be mentioned as follows:

About monographs

First of all, “Giáo trình Lý luận và Pháp luật về quyền con người” by Prof. Dr.

Nguyen Dang Dung et al. (2015), Hanoi, National Political Publishing House. The textbook has shown basic knowledge about human rights and civil rights in particular. Based on that, I have theoretical knowledge to know what are civil rights.

“Phạm vi và giới hạn của tự do Internet” by Assoc. Prof. Dr. Nguyen Thi Que

Anh and Assoc. Prof. Dr. Vu Cong Giao (2018), Faculty of Law - Hanoi National University, is a collection of articles on many freedom issues on the Internet such as limitation, monitoring of freedom of expression, the role of the State’s management, the situation of exceeding the limit of free speech – hate speech, international law and reference to Vietnam, etc. It provides readers with theoretical and practical knowledge to understand freedom in cyberspace in Vietnam and other countries. Especially articles on freedom of expression and the rights to privacy and protection of personal

data such as: “Internet với tự do biểu đạt và quyền bảo vệ dữ liệu cá nhân trong pháp luật Cộng hòa Pháp” of Assoc. Prof. Dr. Nguyen Hoang Anh, Faculty of Law - Hanoi National University, “Cân bằng quyền tự do biểu đạt và quyền riêng tư trong mơi trường Internet: Bình luận một số bản án của Tòa án Nhân quyền và Tịa án cơng lý châu Âu” of Dr. Do Giang Nam, Faculty of Law - Hanoi National University has

shown the interaction between these rights to understand the necessity of limiting them.

Besides, it is impossible not to mention the “Quyền về sự riêng tư” of Assoc.

Prof. Dr. Nguyen Thi Que Anh et al.(2018), Faculty of Law - Hanoi National

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Through these above monographs, I could grasp theoretical and practical knowledge about freedom in cyberspace and the privacy rights of minors. Then, I can inherit to write my thesis.

About other works

Specific research related to minor’s civil rights violated in cyberspace includes

the following works. “Chế tài đối với hành vi xâm phạm danh dự, nhân phẩm, uy tín của cá nhân theo pháp luật dân sự ở Việt Nam” by Pham Minh Chau (2020), Master of Law thesis, Faculty of Law - National University Hanoi or “Quyền được bảo vệ bí mật thông tin cá nhân ở Việt Nam hiện nay” by Pham Thi Hau (2017), Master's thesis

in jurisprudence, Faculty of Law - Hanoi National University; etc. They show the theoretical basis of rights such as the right to protect the honour, dignity and reputation of individuals; the right to privacy of personal information; provisions of Vietnamese law and international law; infringing acts and obstacles in applying relevant legal provisions.

In addition, some research works related to the group of minors who are children, such as:

“Bảo vệ trẻ em trên không gian mạng” by Pham Thanh An et al. (2020), Hanoi

Law University has shown a complete and general definition of child protection in cyberspace from different angles, dived into the legal solutions and practical solutions recommended for exact circumstances.

“Pháp luật về bảo vệ trẻ em trên không gian mạng” by Luong Dieu Thu et al.

(2021), Vietnam Court Academy has also systematized and clarified the theoretical basis of Vietnamese law on protecting children in cyberspace; formulating concepts, contents, forms and conditions to ensure the application of the law; at the same time,

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3. The research aims and tasks

3.1. Research aims

The thesis clarifies the theoretical basis and reality of the infringing civil rights of minors in cyberspace. Then, the thesis gives viewpoints and recommendations to complete the law on the civil rights of minors in cyberspace.

3.2. Research tasks

The thesis needs to perform the following tasks to achieve the research aims: - Representing the theoretical basis such as the concepts of juveniles, cyberspace, and civil rights of minors infringed in cyberspace;

- Analyzing the provisions of Vietnamese law, the real situation, limitations and causes of the civil rights of minors infringed in cyberspace;

- Proposing several solutions to complete Vietnamese law on civil rights of minors infringed in cyberspace.

4. Object and scope of the research

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- Theoretical significance: this thesis helps readers understand the theoretical knowledge of the law related to the minor’s civil rights infringed in cyberspace, and solutions to reduce limitations and complete the legal system.

- Practical significance: the thesis helped grasp the practical application of current legal provisions to see the progress, limitations, shortcomings and their causes. Then, it proposed a number of solutions to complete the law and improve the law implementation on the civil rights of minors infringed in cyberspace.

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CHAPTER 1:

THEORETICAL FRAMEWORK ABOUT THE CIVIL RIGHTS OF MINORS INFRINGED IN CYBERSPACE

1.1. Some basic concepts

1.1.1. The concept of minors’ civil rights

The term “minor” appears commonly in many scientific disciplines such as

jurisprudence, sociology, or psychology. This term is defined differently depending on the angles. There is no official definition of minors or the age to define a minor in the world. However, the age of minor is determined differently depending on each country’s conditions, customs and laws.

The Convention on the Rights of the Child (CRC) states: “…a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”3According to this provision, “a child” is

understood as a minor. Persons under 18 years old shall be considered children/minors, and persons aged 18 years and older shall be considered adults. The United Nations

Rules for Protection of Juveniles Deprived of their Liberty 1990 state: “A juvenile is every person under the age of 18. The age limit below which it should not be permitted to deprive a child of his or her liberty should be determined by law.”4Accordingly, a minor is a person under the age of 18. The United Nations Standard Minimum Rules

for the Administration of Juvenile Justice 1985 (The Beijing Rules) state: “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult.”5According to the Rules, minors include children and young people depending on the laws of each country. Regulations regarding the minors’ age are different in many countries such as in Germany, children are defined as persons under 14 years of age, adolescents are persons between 14 and under 18 years of age; in Greece, people under the age of 18 are called young people, including children are up to the age of 12, and minors are between 8 and 18 years old, etc.6

3 United Nations General Assembly (1989), Convention on the Rights of the Child, Article 1

4 United Nations General Assembly (1990), Rules for the Protection of Juveniles Deprived of their Liberty, Article

5 United Nations General Assembly (1985), Standard Minimum Rules for the Administration of Juvenile Justice,

point a, clause 2.2, Article 2

6 Protection of minors,

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Although there are differences in how the age is defined as a minor, when it comes to minors, it can be understood as those who are immature and do not have comprehensively mental and physical development. They also have limitations in awareness, experience and life skills. These points make minors very vulnerable.

Civil rights are an important part of the totality of human rights. Civil rights are understood as individual rights, closely tied to each person’s identity and can only be used independently by individuals and cannot be transferred to others. In the International Covenant on Civil and Political Rights 1966 (ICCPR), civil rights are a set of human rights aimed at protecting the freedom of individuals against unwarranted acts of Governments, social organizations and individuals without discrimination.7

Civil rights in the ICCPR can be divided into these rights: the right to equality and non-discrimination; the right to life, liberty, and inviolability of the individual; the right to a fair trial; the right to freedom of movement and residence; the right to privacy; the right to freedom of thought, belief and religion and the right to marry, to establish a family and to be equal in marriage.8 Minors are also fundamental human rights holders, so the civil rights of minors are similar to the civil rights of people.

However, due to the characteristics of minors, except for fundamental rights, minors have not only fundamental rights but also specific rights. In other words, the civil rights of minors are special rights that only minors have and are granted by civil

law. Thus, the civil rights of minors can be defined as "the inherent and natural privileges that only minors are entitled according to the provisions of civil law in political conditions, certain economic, cultural and social conditions”.9 According to the CRC, the civil rights of minors include 25 rights and are divided into four groups of rights: the right to survival, the right to protection; the right to development and the right to participation. Those rights are formulated explicitly for minors and develop upon the rights in the ICCPR.

7 Nguyen Manh Hung (2013), Khái quát về các quyền dân sự của công dân trong lịch sử lập hiến Việt Nam và

những đánh giá, đề xuất liên quan đến việc quy định và thực thi các quyền dân sự, Vietnamese Journal of legal

sciences, No. 03(76)/2013, p.11-20

57b11ea7450d

Nguyen Dang Dung et al. (2015), Chương IV: Các quyền Dân sự và Chính trị trong luật quốc tế, in Textbook of

theory and law on human rights, Ha Noi, National Political Publishing House, p.149 - 150

9 Vu Hong Minh (2010), Quyền của người chưa thành niên theo pháp luật dân sự Việt Nam, Master’s Thesis,

Hanoi National University, Ha Noi, p. 13

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1.1.2. The concept of cyberspace

The Internet was invented as a result of research on the predecessor network ARPANET, a long-distance telecommunications network conducted by the United State Department of Defense for research and development purposes and military purposes. The Internet is formed from the connection of many computers so that people can communicate and exchange information quickly and easily without meeting face-to-face. Over half a century of development, until now, the Internet has become a global network with 4.88 billion users.10In 2012, the United Nations Human

Rights Council recognized “the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms.”11Nowadays, the Internet contains no end of benefits such as web browsers, social networks, news websites, search and lookup sites, utilities, etc. Thus, the Internet has existed as an essential thing in human life as a means of connecting things, and it has contributed to creating a space where everyone can work, study or relax, which is called

From a legal perspective, many countries also have their own definition of

cyberspace. In the United States, Cyberspace is defined as “a global domain within the

10 We are social và Hootsite (2021), Report on Digital 2021 October Global Statchot,

11 United Nations Human Rights Council (2012), The Resolution A/HRC/RES/20/8 on promotion, protection and

enjoyment of human rights on the Internet, p.2,

12 William Gibson (1984), Neuromancer, New York: Berkley Publishing Group, 1989, pp. 128.

13 Nguyen Phu Hung (2020), Quyền con người trên không gian mạng ở Việt Nam phù hợp với chuẩn mực Quốc

tế, National Defence Journal, con-nguoi-tren-khong-gian-mang-o-viet-nam-phu-hop-voi-chuan-muc-quoc-te/15853.html

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information environment consisting of the interdependent network of information technology infrastructures and resident data, including the internet, telecommunications networks, computer systems, and embedded processors and controllers.”14In Vietnam, the concept of cyberspace is defined in the Law on

Cybersecurity 2018 that: “Cyberspace is the connected network of information technology [IT] infrastructure comprising telecom networks, the Internet, computer networks, information systems, information processing and control systems, and databases, where people perform social acts without being limited by space and time.”15

From the above points of view, cyberspace can simply be understood as a virtual space, made up of a network connecting information technology infrastructure and a place for people to communicate and exchange information.

1.1.3. Classification of minors’ civil rights in cyberspace

Based on the theory of classification of moral rights, moral rights are divided into inherent moral rights and moral rights based on legal status. Inherent moral rights are the moral rights that the subject has had since his/her was born and had civil legal capacity. Moral rights based on legal status are rights arising from relationships with other subjects. According to this theory, the civil rights of minors infringed in cyberspace are divided into two groups: moral rights to image, honour and dignity, and moral rights to private life, family and correspondence. According to the provisions of some countries and a number of documents and international treaties below, it is evident that the moral rights to image, honour, dignity, privacy, family, correspondence all belong to the scope of privacy right.

Although there is no specific regulation, human rights agencies and scholars around the world have determined that the right to privacy is a basic civil right of every person, an essential right for the autonomy and self-respect of the individual as well as for the protection of human dignity16Privacy right plays an extremely important role for individuals and society. It gives each person a space to be himself/herself without unjustifiable judgment, allows each person the freedom to

14 National Institute of Standards and Technology (2012), Guide for Conducting Risk Assessments, SP 800-30 REV.1 under Cyberspace from CNSSI 4009, p. B-3

15 Congress (2018), Cybersecurity Law, Article 2(3)

16 Vu Cong Giao, Le Thi Thuy Huong (2018), Quyền về sự riêng tư trong pháp luật quốc tế và pháp luật Việt Nam,

in Quyền về sự riêng tư, Ha Noi, National Political Publishing House, [13-32] p. 13.

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think without stigma or discrimination, and must control who is allowed to know what about him/her.17 By setting out the legal provisions on privacy right, individuals will have a basis to protect themselves when they realize that they have been violated.

The right to privacy is recognized in many international legal documents, such as the Universal Declaration of Human Rights 1948 (UDHR) in Article 12, the ICCPR in Article 17, the CRC in Article 16.... Besides, regional legislations also govern the laws of many countries on privacy rights, such as the European Convention on Human Rights 1950, the American Convention on Human Rights, etc.

Playing an important role in the human rights legislation of many countries, the right to privacy has many different definitions depending on the conditions of each

country. According to the Oxford Learner’s Dictionaries, “Private” is defined as “the state of being alone and not watched or disturbed by other people” or “the state of being free from attention of the public.”18According to Tavani (2007), privacy right is a situation in which a person is protected from intrusion and can control one's information by restricting other people’s access to that information.19Paul Graham Taylor (2020) said that the right to privacy refers to the area of an individual’s life in which he or she may freely express one’s identity by entering into relationships with others or alone.20According to Tom Gerety, privacy right is the right of individual autonomy and to its scope contains the intimacies of personal identity.21In general, privacy can be understood as an individual’s right to things that belong to his/her privacy and are protected by law.

The UDHR recognized the right to privacy in Article 12 that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the

17 Vu Cong Giao, Le Thi Thuy Huong (2018), Quyền về sự riêng tư trong pháp luật quốc tế và pháp luật Việt Nam,

in Quyền về sự riêng tư, Ha Noi, National Political Publishing House, [13-32], p. 13-14.

18 “Privacy”, Oxford Learner’s Dictionaries 2022, last accessed: 15/04/2022,

19 Eric Durnell et al. (2020), Online Privacy Breaches, Offline Consequences: Construction and Validation of the

Concern with the Protection of Informational Privacy Scale, International Journal of Human-Computer

Interaction 2020, Vol.36, No.19, [1834-1848],

20 Paul M.Taylor (2020), Article 17: Privacy, Home, Correspondence; Honour and Reputation, A Commentary on the International Covenant on Civil and Political Rights, [458–498], Cambridge: Cambridge University

Press, doi:10.1017/9781108689458.020

21 Adreann Lukacs (2016), What is privacy?The history and definition of privacy, szeged.hu/10794/

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law against such interference or attacks.”22This right is reaffirmed in Article 17 of the

ICCPR: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”23 This is a brief, concise provision, but it is general, and protects individuals against a variety of arbitrary acts or illegal invasions of privacy right. According to the above provisions, private life, family, home, correspondence, honour and dignity belong to each individual’s privacy.

The right to privacy of minors is recognized in Article 16 of the CRC that “1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks.”24Hence, the privacy right of minors are also regulated in the same way as the privacy right of adults. Infringing upon the privacy right of minors is an invasion of minors’ privacy life, family, home, correspondence, honour and dignity. However, privacy right is relative. According to paragraph 7 of General

Comment No. 16,“As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life, the knowledge of which is essential in the interests of society as understood under the Covenant. Accordingly, the Committee recommends that States should indicate in their reports the laws and regulations that govern authorized interferences with private life.”25Thus, countries still have the right to collect necessary personal information in certain cases such as national security protection, public order, health or social morality and the legitimate rights and interests of other people, but they must be regulated by law. The legislations of each country must detail the exact circumstances in which interference is permitted. The collection and storage of personal information on computers, data banks and other devices, whether public or private, totally comply with the law. In

22 United Nations General Assembly (1948), Universal Declaration of Human Rights, Article 12

23 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 17

24 United Nations General Assembly (1989), Convention on the Rights of the Child, Article 16

25 United Nations Human Rights Council (1988), CCPR General Comment No. 16: Article 17 (Right to Privacy),

The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation,

08/04/1988, paragraph 7, available at:

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addition, an individual needs to know for himself/herself where his/her information is stored, for what purposes, and needs to identify the organizations and individuals responsible for collection and use.

The moral rights to image, honour and dignity

The image of an individual in terms of moral rights reflects a person’s external appearance in some way recorded on a certain material medium in many situations and in many angles such as portrait images, daily life images, commemorative images, etc. An individual’s right over his/her image is an individual’s moral right. The individual has the entirely right to use everything belonging to his/her image following the law and social ethics, and the use of the individual's image must have consent of that person.26

Dignity is the totality of qualities that each human being has, in other words, it is the human value of each person.27Honour is the respect and appreciation of public opinion towards a person based on that person’s moral and spiritual values.28 Honour and dignity include the following characteristics: attached to each individual and not transferable; once they are damaged, they can only be remedied, not restored to their original state and they has historical characteristics because the views on honour and dignity are different according to the change of different periods.29The right to honour and dignity is a human right recognized in the UDHR in Article 1 and Article 12. The inherent dignity of the human person is affirmed as the origin of freedoms in the major international declarations, including the ICCPR. The ICCPR also reaffirms the right in Article 7 in Article 17.

The moral rights to private life, family, correspondence

The concept of the right to privacy life also has many different points of view depending on each country and each culture. Ones consider the right to privacy associated with personal data, and ones consider privacy and personal data to be two

26 Dang Duy Thanh (2020), Quyền của cá nhân đối với hình ảnh, quy định và bất cập, People’s Court E-Journal,

last accessed 06/05/2022, dinh-va-bat-cap

Mai Van Binh et al. (2010), Bài 11. Một số phạm trù cơ bản của đạo đức học, Citizenship Education 10, 4th

edition, Vietnam education publishing house

28 Mai Van Binh et al. (2010), Bài 11.Một số phạm trù cơ bản của đạo đức học, Citizenship Education 10, 4th

edition, Vietnam education publishing house

29 Pham Minh Chau (2020), Chế tài đối với hành vi xâm phạm danh dự, nhân phẩm, uy tín của cá nhân theo

pháp luật dân sự ở Việt Nam, Master’s Thesis, Hanoi National University, Ha Noi, p.27

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different concepts. In general, this right helps individuals live and control things in their lives without being affected or interfered with by other subjects.30The term

“family” is understood in a broad interpretation, including all words understood in the

sense of family in society in all countries.31In Vietnam, family is understood as a collection of people living together as the smallest unit in society, bound together by marriage and lineage, usually consisting of husband and wife, parents and children.32“Correspondence” includes not only postal communications but also other

forms of communication. One of them is electronic communication such as e-mails and telegrams. 33 Individuals also have the right to keep their family and correspondence private, which is also guaranteed by law.

The development and popularity of the Internet help each individual to have a favourable environment to promote their freedoms, but it raises many problems about ensuring human rights, and one of them is infringing upon the civil rights of minors. People are motivated to exercise their fundamental rights in cyberspace, so it is also where harmful activities around issues of personal data and private life easily take place, such as stalking, bullying, criticizing, exploitation, etc. Those acts lead to physical and mental harm to the individual. They are performed in virtual space, but the consequences they bring are real. Therefore, the civil rights of minors are under threat from infringements in cyberspace.

1.2. Typical infringing acts on the minors’ civil rights in cyberspace

There are many infringing acts on minors’ civil rights in cyberspace. Below are some typical acts of infringing upon the civil rights of minors carried out in cyberspace.

Firstly, acts infringe upon the minor’s right over his/her image.34Commonly, parents often post images of their children on the Internet. Some parents post images because they think their children are cute, want to show them off to friends, or want to

30 Doan Thi Ngoc Hai (2019), Quyền về đời sống riêng tư, bí mật cá nhân, bí mật gia đình trong pháp luật dân sự,

Department of Justice of Bac Giang province, last accessed 07/05/2022, noi-dung/-/asset_publisher/wtMnvtGfRUNi/content/quyen-ve-oi-song-rieng-tu-bi-mat-ca-nhan-bi-mat-gia-inh-trong-phap-luat-dan-su

United Nations Human Rights Council (1988), CCPR General Comment No. 16: Article 17 (Right to Privacy),

The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation,

08/04/1988, Article 5, available at:

32 Hoang Phe (1997), Vietnamese Dictionary, Da Nang publishing house, p.381

33 Oxford Pro Bono Publico of the Faculty of Law (2014), Privacy rights in the Digital Age, University of Oxford, p.

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34 UNICEF (2017), The State of the World’s Children 2017 Children in a Digital World, p. 92,

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preserve their children’s memories from the time they grew up. Nevertheless, some people take the image of their children as a money-making tool for people’s likes and shares, increase interaction, sales promotion, and earn money. On the other hand, when images and videos with the appearance of minors are publicly posted online, strangers other than parents and caregivers can also search and use them illegally for many purposes. Images can be used as illustrations for articles with negative content, fake advertising images, or even edited, cropped into objectionable images, etc. Those acts are harmful to minors’ psychology and development. In short, regardless of the purpose of posting minors’ images online, it likely leads to be many consequences in the future once they are posted online.

Secondly, infringing acts upon the right to honour and dignity are frequently performed, such as using hate speech to negatively impact on the honour and dignity of minors and giving inaccurate information about minors online causes others to

misjudge them. The term “hate speech” refers to very negative statements that attack

or insult some personal characteristics of an individual or a group of individuals about their background, religion, race, or gender,… to incite or promote hatred and violence.35Posting inaccurate information about a minor means that information related to a minor is posted online incomplete, unverified, or fabricated, affecting the honour and dignity of the minor. This act often appears in the field of journalism. When journalists exploit hot topics about minors, they publish false information just to attract more views of the news. One more typical act that uses both hate speech and misinformation is cyberbullying. Cyberbullying of minors is carried out when friends, acquaintances or even strangers constantly repeat words or actions online intending to hurt or embarrass the minors.36Methods of doing this act are spreading lies or sending messages and commenting on posts with harsh, evil words.

The third is infringing acts upon the right to private life, family and correspondence. The acts of individuals, organizations and businesses collect minors’ personal data. Information related to minors, especially children, often attracts a massive amount of attention, so collecting information related to their private life,

35 Nguyen Tien Duc, Tran Thi Thu Thuy (2020), Phát ngôn thù ghét trên mạng xã hội – Những vấn đề pháp lý đặt

ra, Institute of State and Law No. 3/2020, [24-35], p. 25

36 UNICEF (2021), Bắt nạt trực tuyến là gì và làm thế nào để ngăn chặn nó, last accessed 06/05/2022,

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family and correspondence takes place significantly to exploit and earn money. Information related to the minors’ private life and family includes name, age, personal identification, information about family members, residential address, etc. The collection of personal data about minors is vital to the business. Because children and adolescents often have a significant influence on family consumption decisions.37Even minors are the consumers who are easy to access and gain trust. Businesses can buy and sell user data and rely on personal information to advertise on the websites the minors visit. A more dangerous issue is the collection of minors’ personal data for illegal business purposes or illegal money-earning, which harms them physically and psychologically.

In addition, monitoring and collecting information about the minors’ private life and family is also carried out via online platforms be set up algorithms to continuously monitor and record information on user activities on these platforms. There is no need for humans to monitor. These algorithms are programmed to automatically monitor and analyze user activities such as accessing the content in any field, message content, and then recommending related content or selling to other companies to create advertisements about products or services related to previous actions on the website the user visits. While participating in these platforms, users may be informed of the community guidelines. However, they may not mention how data is collected and analyzed or not every minor pays attention to them, so they do not know how to protect themselves actively.

1.3. The relationship between the minors’ civil rights in cyberspace and Internet freedoms

When it comes to the civil rights of minors in cyberspace and the protection of these rights from infringement, it is impossible not to compare it with Internet freedoms because Internet freedom (freedom of expression) is the most abused right in cyberspace and directly infringes upon civil rights.

The United Nations Human Rights Council, in its resolutions on the promotion, protection and enjoyment of human rights on the Internet and most recently in its 2021

37 Doneda, Danilo, and Carolina Rossini, ‘ICT Kids Online Brazil 2014: Survey on internet use by children in Brazil’,

Brazilian Internet Steering Committee, São Paulo, Brazil, 2015, p. 37, communications/assets/documents/research/eu-kids-online/participant-countries/latin-america/BR-ICT-2014.pdf

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resolution, has continued to affirm “the same rights that people have offline must also be protected online, in particular freedom of expression”.38Thus, Internet freedom is recognized as fundamental human right and freedom expressed in cyberspace. Article 19 of the UDHR and Clause 1 of Article 19 of the ICCPR affirm that everyone has the right to freedom of expression without interference. Clause 2 of Article 19 of the ICCPR stipulates that freedom of expression can be exercised in any form and by any

means “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”39Accordingly, “expression” in general and in

cyberspace is not only the act of speaking, but also includes the act of writing, symbolizing, non-verbal expression through images or art objects; seeking, receiving, and communicating their information and opinions anywhere. Clause 2 protected all forms of expression and transmission, and the Internet is recognized as a means for people to exercise and promote their freedom of expression.40

However, Clause 3 of Article 19 of the ICCPR stipulates: “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”41Thus, the exercise of Internet freedom must always ensure that it does not infringe or affect the civil rights of others in cyberspace. Internet freedom must be associated with one’s own responsibility before the law, and one must know how to control the exercise of this right. In other words, the limitation of Internet freedom is respecting the rights and reputation of others in cyberspace (civil rights), including minors.

Freedom of expression and civil rights protected in cyberspace are interrelated. The first is the reciprocal relationship. In cyberspace, protected civil rights create an

38 United Nations Human Rights Council (2021), The promotion, protection and enjoyment of human rights on

the Internet : resolution / adopted by the Human Rights Council on 13 July 2021, p. 3,

39 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(2)

40 United Nations Human Rights Council (2011), General comment no. 34, Article 19, Freedoms of opinion and expression, paragraph 12,

41 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(3)

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independent and free space without outside interference or pressure for individuals to think and create new knowledge freely. Besides, freedom of expression will help the subject detect and publicize acts that violate on protected civil rights in cyberspace. Therefore, respecting those civil rights is necessary for promoting the exercise of freedom of expression and vice versa.42 The second is a conflicting relationship. Infringement by one party can be both a cause and a consequence of an infringement of the other right.43Reading books, watching movies and talking to anyone online are all private things of a minor, and no one has the right to interfere with without the minor’s consent. On the other hand, web tracking activities appear as tools to collect user data from chats, information searches, face recognition, and voice have increased opportunities for third-party monitoring and interfering with users’ personal data. When minor users know they can be tracked, they will gradually limit their online activities. Then, personal data is evaluated and analyzed, and some information is not recommended, preventing them from accessing some information. Thus, the user is restricted to freedom of speech and freedom to receive information.

Limitations of Internet freedom cannot be arbitrarily regulated. Restrictions on freedom of expression must be provided for by law. Only the provisions of the laws of each country are strong enough to make citizens self-control their behaviour and aware of the liability to put the exercise of this right into the framework. General Comment

No. 34 said that“to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public.”44State regulation of restrictions on freedom of expression under the ICCPR is based on two conditions.

The first condition is that such restrictions must be urgent and appropriate. Urgency is a restriction that is to prevent the harmful effects of exercising freedom of expression within a specific time limit, and the limitations of appropriateness or proportionality must be demonstrated that exercising freedom of expression can

42 Do Giang Nam (2018), Cân bằng quyền tự do biểu đạt và quyền riêng tư trong mơi trường Internet: Bình luận

một số bản án của tòa án nhân quyền và tòa án công lý châu Âu, in Phạm vi và giới hạn của tự do Internet,

Hanoi, National Political Publishing House, p. 401

43 Carly Nyst (2018), Two sides of the same coin – the right to privacy and freedom of expression, Privacy

International, last accessed 16/04/2022 privacy-and-freedom-expression

United Nations Human Rights Council (2011), General comment no. 34, Article 19, Freedoms of opinion and expression, paragraph 25,

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1.4. The laws of some countries on the minors’ civil rights infringed in cyberspace

Cyberspace has promoted the exercise of human rights and the civil rights of minors in particular, but it causes many problems. Hence, countries have different ways to protect human rights as well as the civil rights of minors in cyberspace. There are some typical countries.

Chinese law

In China, the world’s largest Internet access platforms such as Google, Facebook, Youtube,... are not active. China has built its own system of domestic platforms, such as Baidu, Weibo, Youku,...This solution make it easier for China to focus on managing citizens’ activities in cyberspace with different policies. In recent years, China has stepped up activities to protect citizens in cyberspace, especially for personal information. The Personal Information Protection Law, enacted in 2021, protects personal information and regulates the handling of personal information. The Social Credit System policy in which social media have built an algorithmic model to measure the creditworthiness of an individual by assessing the authenticity or positive

45 Vu Cong Giao, Hoang Thi Bich Ngoc (2018), Về giới hạn và việc giám sát tự do ngôn luận trong môi trường

Internet, in Phạm vi và giới hạn của tự do Internet, Ha Noi, National Political Publishing House,[178-196], p. 180

46 United Nations Human Rights Council (2011), General comment no. 34, Article 19, Freedoms of opinion and expression, paragraph 22

47 United Nations General Assembly (1966), International Covenant on Civil and Political Rights, Article 19(3)

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interaction of his/her account. This policy helps to limit many problems such as forgery and hate speech to protects the citizen’s civil rights, especially minors in cyberspace.

The Chinese Government has concerned about data protection and cyber security in protecting and exercising the civil rights of minors in cyberspace. To deal with the widespread problems of privacy of the minor group who are children in cyberspace, in 2019, China issued the Provisions on Online Protection of Children’s Personal Information. This is the first time China has specifically regulated the protection of children’s personal information on the Internet and introduced stricter provisions for handling children’s personal information than the provisions in the Cybersecurity Law. The Provisions apply to minors under the age of 14, and to activities related to the online collection, storage, use, transfer and disclosure of children’s information in the territory of this country. Some typical provisions are48: organizations or individuals must not produce, publish personal information without the permission of the child’s guardian or spread information that violates the the child’s personal information security (Article 9); Network operators receiving permission must also provide an opt-out option and clearly inform purpose, method, scope, location, data collection period, security measures, consequences of refusal, channels and methods of complaint (Article 10); and especially the provision has recognized that children and guardians have the right to request editing personal information in all cases and deletion of information in certain cases (Article 19, Article 20),…. With the issuance of this law, China has formed a specific legal basis to regulate the protection of personal information of minors who are children on the Internet, promoting liabilities and obligations of guardians and network operators.

The European Union law

The protection of minors’ civil rights in cyberspace in the European Union (EU) has not had specific provisions for minors, but the fundamental privacy regulations can be relied upon to confirm that minors who are children are also entitled to this right. According to Articles 7 and 8 of the Charter of Fundamental Rights of the

European Union, “Everyone has the right to respect for his or her private and family

48Cyberspace Administration of China,儿童个人信息网络保护规定 [Provision on the Cyber Protection of

Children’s Personal Information],

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life, home and communications”49 and “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.”50

In EU, protecting personal data and respecting private life are two fundamentally different rights. The right to privacy requires non-interference in the private life and family of others, while the right to protect personal information includes provisions for access and confidentiality of information. Separating personal data from the right to privacy makes processing more transparent because there are situations where the right to privacy does not affect the right to protection of personal data.51

One of the critical pillars of the data protection regulatory framework in the EU, the General Data Protection Regulation 2018 (GDPR) provides the right to be forgotten for the first time. The right to be forgotten has existed in European data protection law for more than 20 years since the Data Protection Directive 1995. Maintaining this right helps to ensure the practical application of data protection principles. Then, with Article 17 of the GDPR, Internet users dramatically increase their control over their personal data. It becomes less complicated to identify violations of users’ rights and determine the scope to which the data controller is obligated to delete users’ data.

This right includes two other rights, one is the right to delete data, and the other is the right to delist.52 The right to delete data under the GDPR is that the subject has have personal data relating to him/her deleted from the controller without delay and the controller is obliged to delete the personal data without delay by one of the

49 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02,

Article 7

50 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02,

Article 8

51 Ngo Minh Huong, Nguyen Dinh Duc (2018), Quyền riêng tư của trẻ em trong không gian Internet tại Việt Nam,

in Quyền về sự riêng tư, Ha Noi, National Political Publishing House [113-134], p. 129.

52 The European Parliament and the Council of the European Union, General Data Protection Regulation, Article

17,

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legitimate reasons are listed. Meanwhile, the right to delist is the right that the user request that the controller, who has made his/her personal data public, delete any links to or copy or replication such personal data. In order to avoid infringing upon other freedoms in cyberspace, the right to be forgotten cannot be exercised under certain circumstances, including exercising the right to freedom of expression and information; complying with a legal obligation which requires processing under Union or Member State law to which the controller is subject, or for performing a task carried out in the public interest; for the benefit of the community in the field of public health; for archiving purpose in the public interest, for scientific or historical research purposes or for statistical purposes, and for the establishment, exercise or defence of legitimate claims.

GDPR also has provisions specifically for the right to be forgotten of minors who are children related to information society services. The information society services contain all remunerated services, at a distance, by electronic means, and at the individual request of the service recipient.53When a child user has agreed with the controller about using his/her personal data, he/she can request to have his/her personal data erased. Children who are 16 years of age or older can directly request. Children who are under 16 years of age need the consent or authorization of their parents.54

In addition to protecting data in cyberspace, the European Union also has strong reactions in combating infringing acts on honour and dignity in cyberspace. Specifically, the European Commission’s Code of Conduct on Countering Illegal Hate Speech Online issued in 2016 puts the responsibility on the large technology companies such as Facebook, Microsoft, Twitter, and Youtube to make commitments to limit hate speech online. Accordingly, these companies must have precise mechanisms in order to review illegal hate speech-related notifications on their platforms; prohibit incitement to acts of violence and hostility in community

53 The European Parliament and the Council of the European Union, Directive (Eu) 2015/1535 Of The European

Parliament And Of The Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on information society services (codification), Article 1(b)

54 The European Parliament and the Council of the European Union, General Data Protection Regulation, Clause 1(f), Article 17,

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55 The European’s Comission (2016), Code of conduct on countering illegal hate speech online,

xenophobia/eu-code-conduct-countering-illegal-hate-speech-online_en

Boring, Nicolas (2020), France: Parliament Adopts Law to Protect Child “Influencers” on Social Media, Library

of Congress, protect-child-influencers-on-social-media/

Graciela Rodriguez-Ferrand (2021), Spain, Children’s Online Privacy and Data Protection in Selected European

Countries, Library of Congress, p. 43,

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Along with other countries, Vietnam also pays special attention to protecting the civil rights of minors in cyberspace. First of all, Article 21 of the Constitution 2013

stipulates that: “1. Everyone is entitled to the inviolability of personal privacy, personal secrecy and familial secrecy and has the right to protect his or her honour and prestige. Information regarding personal privacy, personal secrecy and familial secrecy is safely protected by the law. 2. Everyone enjoys the secrecy of correspondence, telephone conversations, telegrams, and other forms of exchange of personal information. No one is illegally allowed to open, control, and confiscate others’ correspondence, telephone conversations, telegrams, and other forms of exchange of personal information.”60

Institutionalize the provisions of the Constitution 2013, along with the inheritance and development of the Civil Code 2005, the Civil Code 2015 explicitly regulated on protecting civil rights of minors in cyberspace in a section dedicated to moral rights. Clause 1 of Article 25 of the Civil Code 2015 recognizes that moral rights are civil rights attached to each individual and cannot be transferred to another person unless otherwise prescribed by other relevant laws.61 For minors, the establishment of civil relations related to moral rights must be agreed by their legal representative following the provisions of this Code, other relevant laws or a decision of the court.

58 Congress (2015), Civil Code, Article 20

59 Congress (2016), Law on Children, Article 1

60 Congress (2013), Constitution, Article 21

61 Congress (2015), Civil Code, Article 25(1)

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