Wednesday, September 16, 2020

Second ISP liability case in Vietnam; this time against Alibaba subsidiary Lazada


Vietnamese publisher First News is taking legal action against e-commerce platform Lazada.  The claim by the Saigon-based company is that many Lazada merchants sell fakes books, and despite repeated notices to take them down, the problem has worsened. 

This is the second ISP liability case filed recently in Saigon. See here for details of a similar recently filed TikTok case. It is thought they are the first such civil cases in the country.  

Some of the fakes seen include classics such as Dale Carnegie’s "How to Win Friends and Influence People" and the "Chicken Soup for the Soul" books. The prices of the copyright infringing books are half the prices of the originals they say and many buyers have apparently complained.  First News first reported on this at an event they ran in July when they announced some 700 fake books available on various e-commerce platforms in Vietnam.

First News is a publisher of many books including Vietnamese translations. It previously sued and won compensation from English language schools for reprinting it’s books locally, so is experienced at enforcing its copyrights.  Lazada is owned by Chinese e-commerce giant Alibaba, and is generally regarded as one of the more efficient e-commerce platforms for dealing with fake items in the SE Asian region. 

Vietnam has long had a pirated book problem. This includes unauthorized photocopying and illegal print piracy. From historic classics like Graham Greene’s the Quiet American to Lonely Planet travel guides, sold on streets of Ho Chi Minh City to tourists, to ELT books for those learning English, as well as journals and academic text books for students. 

ISP liability in Vietnam is split into different types of ISPs. E-commerce platforms have a specific liability under a specific Decree 52 on e-commerce regulation.  This requires platforms to take timely remedial measures upon detection or receipt of complaints about business acts in violation of the law on e-commerce platforms. E-commerce platforms must eliminate from their portals any counterfeits, illegally imported goods or IP infringing goods upon detection or receiving a fair complaint. This is therefore a form of statutory liability, without use of the concept of safe harbour.  

The law suit alleges Lazada's local operating company, a company called Recess, which is a Vietnamese subsidiary of Alibaba, repeatedly assisted in the sales of pirated books and was on notice of First News’ warnings. The case was filed in the Ho Chi Minh City District 1 People’s Court.  This court has heard copyright cases before so has some experience. It is the correct forum for two local companies to litigate this issue. 

Conversely the Tiktok case was filed in the Ho Chi Minh City Court (a provincial/city-level court) as it is a dispute between a local party and a foreign one. The grounds will also likely differ as TikTok is probably not regarded as an e-commerce platform but another form of ISP (i.e. “ an online social network service”) so not governed by Decree 52 but a different set of rules, namely Joint Circular 07.  However the underlying principles should be the same.  Platforms and IP owners will eagerly await the outcomes of both. 




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