The Personal Data Protection Decree (PDPD) of Vietnam employs the factor of an entity's link or presence in the jurisdiction to determine its scope of applicability, extending its reach to both domestic and foreign entities with a connection to Vietnam.

Text of Relevant Provisions

PDPD Art.1(2)(a):

"2. This Decree applies to:

a) Vietnamese agencies, organizations and individuals;"

PDPD Art.1(2)(b):

"2. This Decree applies to:

b) Foreign authorities, entities and individuals in Vietnam;"

Analysis of Provisions

The PDPD clearly establishes its applicability based on an entity's link or presence in Vietnam through two key provisions:

1. Article 1(2)(a) covers "Vietnamese agencies, organizations and individuals", encompassing all domestic entities regardless of their specific nature or legal form.
2. Article 1(2)(b) extends the law's reach to "Foreign authorities, entities and individuals in Vietnam", capturing any foreign entity with a presence in the country.

These provisions collectively ensure that the PDPD applies to a wide range of entities operating within Vietnam's jurisdiction. The use of broad terms like "agencies," "organizations," and "individuals" suggests an intention to cover all types of legal entities and natural persons.

The phrase "in Vietnam" in Article 1(2)(b) is particularly significant. It indicates that foreign entities fall under the PDPD's scope not based on their country of origin or registration, but on their physical presence or operations within Vietnam. This approach aligns with the principle of territorial jurisdiction in data protection laws, where a country asserts its authority over activities occurring within its borders.

By including both domestic and foreign entities, the Vietnamese lawmakers have created a comprehensive framework that aims to regulate all data processing activities within the country, regardless of the entity's origin. This approach helps to ensure a level playing field for all entities operating in Vietnam and provides consistent protection for personal data processed within the country.

Implications

The inclusion of this factor in the PDPD has several important implications for businesses:

1. Broad applicability: Any entity with a presence in Vietnam, whether domestic or foreign, must comply with the PDPD. This includes multinational corporations with local branches or subsidiaries, as well as foreign companies operating directly in Vietnam.
2. Equal treatment: The law applies equally to domestic and foreign entities, ensuring fair competition and consistent data protection standards across the market.
3. Compliance obligations: Entities falling under the PDPD's scope must adhere to all its requirements, including data protection measures, consent mechanisms, and potential registration or notification obligations.
4. Extraterritorial considerations: Foreign companies considering entering the Vietnamese market must be prepared to comply with the PDPD if they establish any form of presence in the country.
5. Group-wide impact: For multinational groups, the Vietnamese subsidiary or branch's obligations under the PDPD may necessitate adjustments to group-wide data processing practices and policies.
6. Local representation: Foreign entities may need to consider appointing local representatives or establishing local entities to ensure compliance with the PDPD and facilitate interactions with Vietnamese authorities.

This approach to determining the PDPD's applicability based on an entity's link or presence in Vietnam creates a comprehensive regulatory framework that covers a wide range of data processing activities within the country's borders, regardless of the entity's origin or primary place of business.