Tiếng Việt
Table of Contents:
- What is secret filming?
- Personal rights to images
- Administrative handling of secret filming
- Criminal prosecution for secret filming
1. What is secret filming?
Currently, there are no specific regulations explaining what secret filming is in legal documents. However, it can be understood that secret filming is the act of a person using one or more devices such as cameras, phones, camcorders, etc. with the function of recording to film another person without the permission of the person being filmed.
2. Individual rights to images
Regarding individual rights to images, Article 32 of the Civil Code 2015 stipulates as follows:
“Article 32. Rights of individual with respect to his or her image
1. An individual has rights with respect to his or her image.
The use of an image of an individual must have the consent of the person.
Where an image of a person is used for commercial purposes, remuneration must be paid to the person having the image, except where agreed by the parties.
2. The use of an image in the following cases does not require consent of the person having the image or of his or her legal representative:
(a) The image is used for the national interest, ethnic group interest, or public interest;
(b) The image used is from a public activity, including conferences, workshops, sports competitions or artistic performance activities, or other public activities, which do not damage the honour, dignity or reputation of the person having the image.
3. Where the use of an image violates the provisions in this article, the person having the image has the right to request that a court issue a decision to force the violating person or related agency,organization or individual to recover, destroy or terminate the use of the image, to compensate for loss or damage, and to apply other measures for resolution in accordance with law.”
At the same time, Clause 2, Article 38 of the 2015 Civil Code also stipulates as follows:
“Article 38 Right to private life, personal privacy and family privacy
2. The collection, storage, use, and publication of information related to the private life or personal privacy of an individual must have the consent of that person, and the collection, storage, use, and publication of information related to family privacy must have the consent of the family members, except where otherwise prescribed by law.”
Based on the above, any individual or organization using another person’s image for any purpose (regardless of commercial or non-commercial) without permission from the person with personal rights to that image is considered a violation of the law.
3. Administrative handling of secret filming
Regarding administrative sanctions, according to Point e, Clause 3, Article 102 of Decree 15/2020/ND-CP stipulating sanctions for administrative violations in the fields of post, telecommunications, radio frequencies, information technology, network information security and electronic transactions, there are regulations on people who collect, process and use information of other organizations and individuals without consent or for purposes other than those prescribed by law as follows:
“Article 102. Violations of regulations on storage, leasing, transmission, provision, access, collection, processing, exchange and use of information
3. Fines from VND 10,000,000 to VND 20,000,000 for one of the following acts:
e) Collecting, processing and using information of other organizations and individuals without consent or for purposes other than those prescribed by law purposes as prescribed by law.”
4. Criminal prosecution for the act of secretly filming
In case a person uses secretly filmed images or information of another person with the purpose of humiliating, seriously offending the dignity, honor, or reducing the reputation of an individual, he or she may be prosecuted for the crime of humiliating others according to the provisions of Article 155 of the Penal Code 2015, amended and supplemented in 2017:
“Article 155. Insults to another person
1. Any person who seriously insults another person shall receive a warning, be liable to a fine of VND 10,000,000 – VND 30,000,000 or face a penalty of up to 03 years’ community sentence.
2. This offence committed in any of the following cases shall carry a penalty of 03 – 02 years’ imprisonment:
a) The offence has been committed more than once;
b) The offence is committed against 02 or more people;
c) The offence involves abuse of the offender’s position or power;
d) The offence is committed against a law enforcement officer in performance of his/her official duties;
dd) The offence is committed against a person who cares for, teaches, raises, or provides medical treatment for the offender;
e) The offence is committed using a computer network, telecommunications network, or electronic device;
g) The victim suffers from 11% – 45% mental and behavioral disability because of the offence.
3. This offence committed in any of the following cases shall carry a penalty of 02 – 05 years’ imprisonment:
a) The victim suffers from 46% mental and behavioral disability or above because of the offence;
b) The offence results in the suicide of the victim.
4. The offender might be forbidden from practicing his/her profession or doing certain jobs for 01 – 05 years.”
In the case of a person who secretly films another person, then stores, circulates, exchanges, transports, or buys and sells to disseminate secretly recorded images or videos with sensitive content, he or she may be prosecuted for the crime of disseminating obscene cultural products according to the provisions of Article 326 of the Penal Code 2015, amended and supplemented in 2017:
“Article 326. Distribution pornographic materials
1. Any person who makes, duplicates, publishes, transports, deals in, or stores books, magazines, pictures, films, music, or other items that contain pornographic contents for the purpose of distributing them or distributes pornographic materials in any of the following cases shall be a fine of from VND 10,000,000 to VND 100,000,000 or face a penalty of up to 03 years’ community sentence or 06 – 36 months’ imprisonment:
a) The offence involves an amount of digital data from 01 GB to under 05 GB in size;
b) The offence involves 50 – 100 physical books or magazines;
c) The offence involves 100 – 200 physical pictures;
d) Pornographic materials are distributed among 10 – 20 people;
dd) The offender incurred an administrative penalty or has a previous conviction for the same offence which has not been expunged.
2. This offence committed in any of the following cases shall carry a penalty of 03 – 10 years’ imprisonment:
a) The offence is committed by an organized group;
b) The offence involves an amount of digital data from 05 GB to under 10 GB in size;
c) The offence involves 51 – 100 physical books or magazines;
d) The offence involves 201 – 500 physical pictures;
d) Pornographic materials are distributed among 21 – 100 people;
e) Pornographic materials are distributed to people under 18;
g) The offence is committed using the Internet, a computer network, telecommunications
network, or electronic device;
h) Dangerous recidivism.
3. This offence committed in any of the following cases shall carry a penalty of 07 – 15 years’ imprisonment:
a) The offence involves an amount of digital data ≥ 10 GB;
b) The offence involves ≥ 101 physical books or magazines;
c) The offence involves ≥ 501 physical pictures;
d) Pornographic materials are distributed among ≥ 101 people;
4. The offender might also be liable to a fine of from VND 5,000,000 to VND 30,000,000 or prohibited from holding certain positions or doing certain jobs for 01 – 05 years”.