The practice of unfair trade in Vietnam, especially that of misleading or deceptive conduct, has increased in recent years, substantially undermining the effectiveness of the consumers’ right to information.Footnote 1 While protecting the interests of consumers was one of the main objectives of Vietnamese lawmakers in designing the Law on Consumer Protection 2010 (LCP),Footnote 2 the content of the LCP in this area is limited to just two articles. Article 8 acknowledges the right of consumers to be informed about the goods and services they purchase while Article 10 prohibits false information or misleading conduct by businesses. Given the importance of preventing unfair trade practices, the existence of these limited articles in the LCP suggests the inadequacy of the Vietnamese LCP. However, while the LCP is limited in its ambit of operation, a variety of consumer protection provisions can be found in other statutes that predate the enactment of the LCP. These laws are closely related to the objective of protecting consumers in trade practices and include the Advertising Law,Footnote 3 Law on Measurement,Footnote 4 Law on Quality,Footnote 5 Competition Law,Footnote 6 and Commercial Law.Footnote 7 For example, Article 10 of the Law on Quality imposes obligations on businesses, including obligations to ensure the quality of goods and the veracity of the information provided in relation to the sale of goods. Significantly, these provisions are more extensive than the corresponding Article 12(5) of the LCP.Footnote 8
It is suggested that the fragmented nature of Vietnamese consumer law presently has led to ineffective and inconsistent governance; it would be preferable to design a clear regulatory framework to protect the interests of consumers. Typically, following the civil law tradition, the legal document at the highest level, the Civil Code, should provide for the overall principles while applying the regulations of many subsidiary enactments such as the LCP and Commercial Law.Footnote 9 In other words, the provisions which are considered to be general principles in the Civil Code are automatically recognized and applied to lower enactments without the requirement of a rule granting such applicability. However, this does not automatically apply in the case of regulations of laws which are at the same subsidiary level. Since such regulations are to be applied mutually, there needs to be a reference provision that allows for such application. Currently, there is no such provision in the LCP.Footnote 10 Consequently, the regulation against misleading or deceptive conduct in Vietnam is dispersed and imprecise, given the lack of a link between the LCP and related laws. In this regard, the sophisticated legislative framework governing misleading and deceptive conduct provided by the Australian Consumer Law Footnote 11 (ACL) provides a useful template for law reform in Vietnam. Within this context, this article aims is to analyze the merits of the present laws prohibiting misleading or deceptive conduct in Vietnam, examine the comparable regulatory framework in Australia, and consider the extent to which Australian laws can guide the reform discourse in Vietnam.
A variety of studies have articulated and critiqued the customer's right to information and developed the related theories of modern economics. Information rationales were also comprehensively discussed by Iain Ramsay.Footnote 12 Beales, Craswell, and SalopFootnote 13 stressed the importance of the information-based principle of consumer protection. Averitt and Lande discussed the relationship between antitrust and consumer protection law, developing and analysing the doctrine of consumer sovereignty.Footnote 14 Geraint Howells stated that increasing the information available to the consumer is undoubtedly significant,Footnote 15 however, he highlighted limitations of information including insufficient time, alternatives, market impediments to switching, the insight of behavioural economics, and that information is likely to benefit well-educated middle-class consumers. As a result of these studies, the informative rationale of consumer protection now has been admitted broadly worldwide; but how this right should be regulated is under-researched, especially for developing countries. In Vietnam, notable works in this category include ‘Comparative Research of Consumer Protection Laws of Some Countries – Lessons and Proposal for Vietnam’,Footnote 16 ‘Experiences in Designing Legal Provisions on Product Liability of Some Asean Countries’,Footnote 17 ‘The Basic Principles of Product Liability Regulations in the United States and Some Other Countries’Footnote 18 and ‘Improvement of Consumer Protection Law in Vietnam in the Context of International Integration’.Footnote 19 In the light of comparative research, a fairly comprehensive analysis of the important provisions in the consumer laws of Australia, the EU, the UK, the US, Canada, and Singapore is presented in ‘Comparative Analysis of Overseas Consumer Policy Frameworks’;Footnote 20 and ‘Comparative Consumer Law Reform and Economic Integration’,Footnote 21 which undertook a comparative analysis of the general legal frameworks protecting consumers in New Zealand and the EU, occasionally uses the ACL as a comparative framework. These comparative studies, either conducted in Vietnam or in the international context, investigated and analysed the regulation of consumer law in general terms instead of focusing on specific consumers’ rights. As such, no comprehensive research has focused on the consumer's right to information in Vietnam or undertaken a comparative study between the legal framework of this right in Vietnam and that of another country. This article aims to fill these gaps in the scholarly literature. It is hoped that the present analysis and the proposed solutions will help improve Vietnamese consumer law and form a useful template for other developing countries who are seeking to strengthen the effectiveness of their consumer protection laws.
A comparision of Vietnam's and Australia's consumer law
Justification for the selection of Australia for comparative study
In a report at a summary conference on consumer protection practices in Vietnam during the 2011–2015 period, Nguyen Manh Hung, Vice President and General Secretary of the Vietnam Standard and Consumers Association, and many other experts commented that despite initial achievements, consumers’ rights in Vietnam were still being challenged by a legal framework with a lot of limitations and ineffective implementation. At present, Vietnam is criticised for not having an effective regulatory mechanism to ensure that a consumer's right to information is fully protected.Footnote 22 It is hence useful to examine the LCP and identify the extent to which it protects the consumer's right to information by comparing the LCP with the ACL in order to consider how these identified shortcomings can be addressed.
Australia has been chosen as a basis for comparison due to the quality of the ACL and a number of similarities between Australian and Vietnamese consumer law, which are useful in guiding Vietnamese reform discourse in consumer protection law. The ACL, and the Trade Practices Law 1974 Footnote 23 (TPA) that preceded it, have been subject to an extensive law reform debates and amendments.Footnote 24 Therefore, it can provide Vietnam with useful experiences and reform suggestions. Specific reasons for the selection of the ACL for comparison with Vietnam are detailed below.
First, Australia is a country with a long history of legal and cultural traditions and effective governance. In 2019, the percentile rank for Australia was reported at 98.56 per cent for ‘Regulatory Quality’ and 93.27 per cent for ‘Rule of Law’.Footnote 25 Thus, Australia's well-functioning legal system is a guarantee of the application of consumer protection philosophy that keeps pace with new developments of the field. Further, Australia is a country with a long tradition of legal and cultural traditions, while legal philosophy is something that Vietnam is lacking and transplanting.Footnote 26 The combination of a contemporary and conventional legal system is a good reference to address the aspects of a young legal foundation such as that of Vietnam.Footnote 27
Second, the ACL was enacted in 2010 following the global financial crisis in or around mid-2007. Australia gained experience in adopting appropriate policies and integrating the findings of international economic, psychological, and social studies related to economic policy and consumer protection following this crisis.Footnote 28 A complete policy framework adopted following the global financial crisis and its aftermath and such experienced institutions is a good template for Vietnam.
Third, the geopolitical and economic context of Vietnam is arguably more comparable to Australia than to Europe or the United States. Australia is relatively geographically proximate to Vietnam and operates in the same Asia-Pacific markets.Footnote 29 Australia has also undergone significant national policy reforms in the mid-1990s in which the country's economic structure was changed, removing legal burdens and abolishing the government's monopoly. Two policy proposals among six advocated by the Hilmer Committee's report include the introduction of competitive neutrality and restructuring of public sector monopoly businesses to increase competition in 1993.Footnote 30 According to OECD's recommendation on Vietnam's competition law and policy, the principle of competitive neutrality should also be applied to all levels of government until a clear and comprehensive competitive neutrality framework is fully and effectively implemented.Footnote 31 These are the challenges that Vietnam, whose government's holdings and participation still dominate the market, will soon have to address.Footnote 32
Introducing the ACL
Australian consumer protection legislation originated from the Molony Report on Consumer Protection of 1962 by the English Committee on Consumer Protection,Footnote 33 overcoming the limitations of remedies available under traditional common law.Footnote 34 This was later developed into state-level regulations on consumer protection before the TPA, comprising these regulations, was enacted at the federal level in 1974. Between 1974 and 1997 was also the period when the principle of caveat emptor was criticized for equityFootnote 35 and states intervened in the market, including in consumer protection matters, which resulted in the introduction of a series of new legislative provisions.Footnote 36 Over a long period of development, regulations on consumer protection in the TPA and the Fair Trading Act 1999 Footnote 37 were officially replaced with a uniform act, the Competition and Consumer Act 2010 (CCA). The ACL marked the end of the 30-year existence of the TPA and Australia's development into one of the top consumer protection countries.Footnote 38 The legal framework for consumer protection in Australia demonstrates the comprehensive objectives of the ACL, which seeks ‘[t]o improve consumer well-being by fostering effective competition and enabling the confident participation of consumers in markets in which both consumers and suppliers can trade fairly and in good faith’.Footnote 39
Such objectives are achieved through the ACL in five chapters that provide comprehensive and specific regulations. General protections detail prohibited acts by businesses, which include the ban on misleading and deceptive conduct, unconscionable conduct in trade or commerce, and specific bans on unconscionable conduct in consumer and some business transactions.Footnote 40 After establishing general protections, the ACL provides for more specific protections including for specific unfair practices in trade or commerce, consumer transactions for goods or services, the safety of consumer goods and product-related services, and the making and enforcement of information standards.Footnote 41
Despite the existence and wide application of the ACL across Australia, there has not been any comprehensive legal theory on consumer protection in Australia.Footnote 42 However, this does not prevent the application of economic theories and information such as consumer sovereignty theory, a modern theory of information and theory on consumer behaviour in developing and executing consumer protection law in this country.Footnote 43 Two main approaches of effective practices to attain the ACL's objectives include the economics of law, in which the cost of interventions must be taken into account for efficiency, and the application of behavioural science to consumers.Footnote 44 The ACL is developed with the objective to correct market failures in the presence of externalities and public goods, and it does not apply whole economic theory on consumer behaviorFootnote 45 indiscriminately but on a ‘case by case’ basis so that the costs of that intervention do not outweigh the prospective benefit.Footnote 46 From this, it can be seen that the rationales for consumer protection in Australia derive from widely accepted and globally developed theories. As a result, the whole system of regulations in the ACL is scientifically structured on the basis of modern and exemplary consumer protection policy.
In the foreword of the Australian Productivity Commission's ‘Review of Australia's Consumer Policy Framework,’ consumers’ disadvantages in information were re-affirmed – the lack of information, behavioural biases, and information overload which result in misleading information and consequences for individuals and adverse effects on the market.Footnote 47 Any legal framework of consumer protection is founded on an information-based rationale, though it does not directly improve consumer information; Australia is no exception.Footnote 48 This framework also addresses the economics of information and state intervention in consumer protection properly by stating ‘the economics of consumer protection is the economics of information,’ which is proven by the terms of ACL. Therefore, the ACL can be an ideal model to assess and contrast against the protection of the consumer's rights in other countries.
Similarities between Vietnamese and Australian consumer protection law
There are many similarities in the respective legislative developments on consumer protection in Australia and Vietnam. In both countries, before the enactment of a specific law, regulations for consumer protection were provided in a piecemeal fashion in the Commercial Law, Civil Code, and other statutes. Both countries adopted federal consumer protection laws in 2010, and both legal systems have followed the inevitable trend of recognising and developing consumers’ rights and protection. The legal framework for consumer protection in Australia consistently demonstrates the comprehensive objectives of the ACL, ‘to improve consumer well-being by fostering effective competition and enabling the confident participation of consumers in markets in which both consumers and suppliers can trade fairly and in good faith.’Footnote 49 To compare with the ACL, the LCP also clearly provides for state intervention in supporting consumers with weaknesses to help them balance their interests with that of the provider. In the draft LCP filed with the Vietnamese government, there was no identification of legal and economic theories used to explain and justify consumer protection policy in Vietnam. Instead, it acknowledged three points: (1) the protection of the interests of consumer and business entities; (2) the need to balance of the interests of both, and (3) the central role of the state in protecting the consumers as well as emphasizing the socialization of consumer protection. It is clear that although these acknowledgments are not comprehensive and thorough enough to become a rationale for consumer protection, they are considered the most fundamental principles in governing socio-economic relations that share the same goals with the ACL's mission.
Despite the above-mentioned similarities, there are differences between these in terms of the level of protection, comprehensive governance of consumer relations and the application of legal techniques in formulating terms and designing laws between Vietnam and Australia. This gap is widening between Australia, with a long-established market economy, and Vietnam, transitioning from a centrally planned to a market economy. However, the notion that the differences in the level and effectiveness of consumer protection between these countries depend on the appearance of their economies and the development of their markets means that we should not compare them is incorrect. From a legal perspective, the differences are the result of acknowledging and applying different legal philosophies and theories of consumer protection. They are also the consequence of adopting, either correctly or incorrectly, superficial economic theories and applying either refined and subtle or poorly developed-lawmaking techniques.Footnote 50 From the perspective of the development of jurisprudence, differences between the mature liberal-democratic legal systems of Australia and the socialist legal system of Vietnam explains why the efficiency of law enforcement in the two countries is not at the same level. However, these differences cannot not be used to eliminate the need for comparison of their laws, especially when these two laws have common objectives.
Currently, although Vietnam has launched the LCP, Vietnam's legal framework of consumer protection is neither comprehensive nor effective. The report presented by Trinh Anh Tuan, President of Vietnam Competition Administration, highlighted the shortcomings and limitations of consumer protection in Vietnam during the 2011–2015 period – with ineffective state intervention and consumer dispute settlement – and emphasized the need to improve the legal framework for Vietnam in this area.Footnote 51 In Vietnam, the prevalence of consumer rights violations indicates the need to analyze and reform the regulations on consumers’ right to information.Footnote 52 In such a context, it is valuable to conduct a comprehensive doctrinal study in this article, examining relevant legislation, case law and scholarly commentary, in order to analyze the LCP and compare it with the consumer law of a country comparable in terms of the history of legal intervention. Thus, it is necessary to consider the merits of the ACL and analyze why and to what extent it provides insights for the purpose of reforming Vietnam's current consumer law.
Criteria for evaluating the consumer law of Vietnam and Australia
Chambers and Wedel state that policy evaluation refers to designing and complying with a set of evaluation criteria to examine and analyze policy elements to answer the traditional question of whether they are ‘good’. The three criteria for evaluating the features of a policy system include evaluation criteria specific to basic policy elements, implications for adequacy, equity, and efficiency, and the fit to the social problem of concern.Footnote 53 According to Chambers and Wedel, these three criteria are used to judge six basic elements without which a social policy/program cannot be implemented, including: (i) mission, goals, and objectives, (ii) forms of benefits or services delivered, (iii) entitlement (eligibility) rules, (iv) administrative or organisational structure for service delivery, (v) financing method, and (vi) interactions among the foregoing elements.Footnote 54 Each of the six elements consists of many subtypes that provide a quick reference for describing the main features of the policy. The second and third criteria are the same for all six policy elements, but the first evaluation criteria that distinguishes between different policy elements, such as mission, goals, and objectives assesses their clarity, measurability, manipulability; administration and service delivery should be judged as to whether there is an articulate program/policy design as well as its integration, continuity, accessibility, accountability, consumer empowerment, and consumer participation in decision making.Footnote 55
In assessing the consumer law of Vietnam and Australia, this article uses the three above-mentioned evaluation criteria to judge the two most familiar subtypes of specific policy elements concerning the form of benefit/service and administration and service delivery, namely, protective regulation and due process protections for clients’ procedural rights.Footnote 56 Specifically, three of the above-mentioned evaluation criteria are used to evaluate the structures and designs of the consumer laws of Vietnam and Australia and the ‘good enough’ level of regulation on misleading or deceptive conduct of their laws. Evaluation criteria specific to structures and designs of these consumer laws defined as the first criterion can be analyzed to find the response for whether their structures and designation are articulate, to what extent consumer empowerment and consumer participation in decision making are ruled, as well as measure the integration, accessibility, and accountability of the laws. Accordingly, Vietnamese and Australian consumer laws are evaluated based on the clarity and consistency of the structures and designs of their laws, the adequacy and appropriateness of forms (in terms of misleading and deceptive conduct to satisfy the criteria of integration), accessibility, accountability, and consumer empowerment. The second criterion is applied to assess the adequacy, equity, and efficiency of consumer laws in Vietnam and Australia in protecting consumer's right to information against misleading or deceptive conduct. To make the evaluation, this article uses the element of due process protections for consumers’ procedural rights represented by a four-step test that will be discussed in the following sections to identify what constitutes misleading or deceptive conduct. The third criterion evaluating the fit of the policy element to the social problem of concern is integrated into the standards for adequacy and efficiency of factors including the structure and designation of the laws, forms of misleading or deceptive conduct, and the four-step test as mentioned above.
The effectiveness of the general prohibition against misleading or deceptive conduct in the law on consumer protection and related laws
The operation of regulations prohibiting misleading or deceptive conduct in the LCP
From the general perspective of regulatory technique construction, the present provision prohibiting misleading or deceptive conduct in the LCP is designed to assert rights and then enforce the infringement of such rights. Correspondingly, there are two principal terms in the LCP that express this structure – Article 8 of the LCP supports consumers’ right to information and general prohibition, while Article 10 of the LCP regulates misleading or deceptive conduct.Footnote 57
Article 8 of the LCP recognizes and affirms the rights of consumers ‘being provided accurate and complete information about organisations or individuals trading goods or services; contents of transaction of goods and/or services; the source and origin of goods; being provided with invoices and vouchers and documents relating to the transactions and other necessary information about goods and/or services that consumers purchase and/or use’. Under normal circumstances, an affirmation of such a right does not make much sense. Once prohibitions against misleading information or deceptive conduct are present in consumer protection law, they imply the assertion of a right to information of consumers. However, in the context of consumer protection legislation in Vietnam, the existence of Article 8 of the LCP has played a significant role. As discussed above, the statutory provisions of consumer information in Vietnam are not confined to the LCP, but are present in different statues; together, they are essential for the enforcement of the LCP. However, there is no provision in these related laws that legally recognize consumer's right to information in general. In the absence of a legal basis for invoking and linking these provisions, Article 8 can be expected to play a meaningful alternative role. It presents not only a statutory recognition of the consumer's right to information in the LCP but also in the overall Vietnamese legal system. Although this is not a recommended solution, this provision can be an alternative basis for a regulatory system. In resolving disputes between consumers and businesses regarding informational obligations, Vietnamese courts may invoke more specific provisions in relevant laws through Article 8 of the LCP.
In comparison, Article 10 of the LCP imposes the principle for the protection of the consumer's right to information provided in Article 8. This is the only clause in the LCP regulating misleading or deceptive conduct. Article 10 directly prohibits the conduct as follows:
Attempt of organizations or individuals trading goods and/or services in deceiving or misleading consumers via advertising activities, or hide or provide information that is incomplete, false or inaccurate about one of the following details:
a) Goods and/or services that organizations or individuals trading goods and/or services provided;
b) Reputation, business ability, and ability to provide goods and/or services of organizations or individuals trading goods and/or services;
c) The contents and characteristics of the transaction between consumers and organizations or individuals trading goods and/or services.
The structure of Article 10 of the LCP reflects the traditional style of regulation by Vietnamese lawmakers in which only the most apparent manifestations of these conduct are described. Specifically, Article 10.1 of the LCP comprises two descriptions. Namely, the form of misleading or deceptive conduct and the information relating to goods and services used to cause confusion or deception. Analysis of Article 10 reveals the characteristics of the regulation on the right to information in the LCP.
Significantly, there is no definition for ‘misleading’ or ‘deceptive’ conduct in Article 10 of the LCP or in any law in the Vietnamese legal system. This lack of definition makes it difficult for judges and authorized agencies to understand and enforce the regulations in this area. As a country of the civil law tradition, there is a reluctance to use precedents in VietnamFootnote 58 despite precedents being recognized as a source of law in 2015.Footnote 59 Crucially, there have not been many cases in this area that can make significant supplement to actual practice. In this circumstance, as Article 10 of the LCP is the only clause regulating misleading or deceptive conduct in the LCP – a specified, important law in the area of consumer protection although it does not provide definitions – it could be expected to serve as a general prohibition in protecting consumer's right to information against misleading or deceptive conduct.
However, the response of this expectation is not satisfactory. Unfortunately, the prohibition regulated in Article 10 of the LCP is limited to narrow and insufficient content. In contrast, it should have been designed more technically and considerably so that this regulation can efficiently protect consumers’ right to information. In Article 10 of the LCP, there are two forms of misleading or deceptive conduct: (i) misleading, deceptive advertising and (ii) concealing or providing incompletely or inaccurate information about goods or services. The latter consists of all types of information-giving relevant to selling goods and services. Apart from Article 10, the LCP has no other provisions that illumines the specific prohibition in Article 10.1 of the LCP. Instead, the remainder of the rules in Article 10.1 of the LCP define the types of information about goods or services that may cause confusion or mislead consumers. These definitions can be categorized into three broad categories – information related to products, information related to organisations and individuals dealing in goods and services, and information relevant to the performance of the transaction. Similar to the regulation on the forms of conduct in Article 10, no other provisions in the LCP provide for the specific elements involved in these three categories of information in Article 10.1 of the LCP.
Interestingly, Article 10.1 of the LCP is a broad general provision that reveals one of the unusual characteristics of the Vietnamese legal system since Vietnamese socialist legal thinking has always been fragmented.Footnote 60 Interpreting this provision is difficult, as there is no specific prohibition that is supplementary to Article 10.1 of the LCP. This characteristic reduces the provision's role as a general protection of the consumer's right to information. Since Article 10.1 is a unique provision in the LCP regulating misleading or deceptive conduct, the pros and cons of this provision can be the basis for assessing the effectiveness of LCP regulations. The lack of specific protections in the LCP presents a severe defect in the statute, likely resulting in the ineffective enforcement of protection of consumers’ right to information in Vietnam. Therefore, this is a significant shortcoming of the LCP that needs to be addressed and requires revision as soon as possible.
It seems that in the view of Vietnamese lawmakers, the LCP naturally belongs to the system of statutes having interrelated legal relationships, such as the Commercial Law,Footnote 61 Competition Law,Footnote 62 and Advertising Law.Footnote 63 Therefore, courts and other mechanisms automatically apply the relevant provisions in these other statues when resolving disputes relating to consumer information, specifically for misleading or deceptive conduct. Consequently, consideration of the protection of consumer's right to information in this area is likely to be subject to the analysis of pertinent provisions of these laws. Interestingly, in laws that do not directly protect consumers –such as those designed with the objective of safeguarding free competition in the market (Competition Law) or the state management of advertising activities (Advertising Law) – the right to consumer information is regulated in more detail. This is a necessary complement by which the mission of protecting consumers in Vietnam could be achieved, but it shows an embarrassing lack of coordination in the application of the philosophy of legal construction in Vietnam. It is also an illustration of the frequent lack of an explicit theory of law that leads to ambiguity and misunderstanding about the level of the dwelling of the content of issues, by which it is impossible to identify the purpose and the mission of each statute.
Yet, as Vietnam has already established the LCP, it is only possible to use the provisions of the LCP and other laws to decide in dispute resolution if – and only if – such an application is stipulated in the LCP.Footnote 64 In such a situation where a regulation already exists, the general principle of ‘lex specialis derog legi generalis’ (‘lex specialis’) will be applied where the LCP plays the role of general law while the relevant statues are specialized laws.Footnote 65 A reference in the statutory provision will form the legal basis for judges and other authorized agencies to apply them when making a decision. Thus, this article's analysis in Section II.B will go in the direction of selecting and analyzing the provisions in specific laws with detailed rules that specify the prohibitions in Article 10 of the LCP.
There are two forms of conduct related to the informational obligation described above, hiding or providing misleading or deceptive information and constituting misleading or deceptive advertising. Categorising into such groups is not entirely appropriate, for example conducting a promotion as well as advertising should be included in the same group of marketing practices, but it is grouped with other types of providing information while advertising is regulated separately. However, the analysis below is implemented in such a way that it adheres to categories introduced in the LCP as the basis for its examination of the provisions of the laws which add and improve the enforcement effect of the LCP. From such an analysis, the consumer's right to information regulations in Vietnam can be assessed.
The ambit of the general prohibition against misleading or deceptive conduct in other laws that suppress the LCP
Apart from the general provisions mentioned in the LCP, the conduct of providing misleading information causing consumers confusion about goods and services is regarded an obligation dealing with the sale of goods and services in the Vietnamese Law on Measurement,Footnote 66 the Law on the Quality of Goods and Services,Footnote 67 and Commercial Law.Footnote 68 Also, the Commercial Law regulates commercial practices relating to traders’ obligation to provide information such as the display, introduction, and promotion of goods. These provisions almost assert the same content that prohibits the conduct of revealing of false information in a similar manner. The Vietnamese Law on Measurement requires producers and traders to provide truthful information on quantities of pre-packaged goods and notify customers and consumers of conditions needed for transporting, storing, preserving, and using these goods. The Vietnamese Law on Quality of Goods and Services sets the rules of a business’ obligations to provide information relating to selling goods and services. Accordingly, Article 8 of the Vietnamese Law on Quality of Goods and Services lists the prohibitions against providing untruthful information, committing fraudulent acts related to products’ and goods’ quality or origin and concealing information on the products’ and goods’ capability of causing danger to humans, animals, plants, assets, or the environment. Meanwhile, Article 16 of the Vietnamese Law on Quality of Goods and Services establishes sellers’ obligations relating to information including the supply of truthful information on product and quality of goods, the goods’ warranty, the goods’ capability of causing danger, and the preventive measures taken upon receiving warnings from producers or importers.
Evaluating the role of these provisions on informational obligations as supplementary aspects of the LCP, these laws are not as complementary as they should be. In general, the provisions on obligations to provide information on the sale of goods and services in the two laws above require businesses to perform acts associated with the mandatory disclosure of information. The drawback of listing these types of information in these laws enumerates just some information type, the content of which is still incomplete. If all the specific information required for disclosure to customers by these two laws are compiled, a well-defined set of information can emerge. Nevertheless, these obligations are with respect to information related to goods and services; they do not concern the manufacturer, supplier, or commercial transaction between transacting parties. Therefore, reading Article 10 of the LCP with other laws show that they are not as complementary as they should or appear to be.
Additionally, one of the essential forms of prohibition against misleading or deceptive conduct is silence as a non-action. However, this kind of conduct is only mentioned in a single provision within the Law on Quality of Goods and Services, which prohibits the concealment of information about the possibility of goods causing danger. Unfortunately, the provision is incomplete, potentially ignoring its silence about other types of information that must be disclosed to the consumer. This is a significant shortcoming of the LCP that requires reform.
Separately, consumer protection is one of the principles of commercial activity articulated in Article 9 of the Commercial Law. With respect to the protection of the customer's right to information, the provisions on businesses’ informational obligations provide for three forms of conduct – display and introduction, promotion, and advertising of goods and services. Accordingly, the Commercial Law stipulates that businesses are prohibited from displaying and introducing samples of goods that do not reflect the quality, price, utility, design, type, packaging, warranty period, and quality indicators. It also provides that businesses must display as well as introduce goods for comparison with other businesses.Footnote 69
In connection with Article 8 of the LCP, Article 123 of the Commercial Law may be invoked as providing the forms of conduct mentioned in the LCP's provision concerning misleading or deceptive information about goods or services. In relation to obligations to provide information for promotion, Article 96 of the Commercial Law requires traders to ‘strictly follow the announced promotion program and commitments with customers’, to publicly inform customers about the prices of goods and services for sale promotion, related expenses for the delivery of goods and services for sale promotion, conditions of participation in the promotion, and the use of benefits received from promotional activities. If the promotion is in the form of donation, the trader must give notice of the price of the goods or services donated; if the promotion is by way of a discount, traders must declare the deduction in comparison to the regular price before the promotion period begins.Footnote 70 The specific benefits that customers receive through other promotional forms and the costs incurred by customers must also be disclosed.Footnote 71
The above prohibitions against misleading or deceptive conduct by the Commercial Law are stipulated more specifically than that of the LCP. As a result, they can be applied by Vietnamese courts and other authorized agencies to be read with the provisions of the LCP in dispute resolution involving consumers’ right to information. However, the supplementary regulations in the Commercial Law, Law on Measurement, and Law on Quality of Goods and Services are still not different from the techniques used to describe the prohibition in the LCP. In the laws discussed in the preceding paragraphs above, there are no regulations that determine the nature of the conduct constituting misleading or deceptive information that can be used to conclude whether the same conduct is in violation of the prohibition. The advantage of these regulations is that they clarify the group of prohibited behaviours in the LCP by specifically detailing the smaller types of conduct in within this group. However, these regulations do not prescribe a process to identify the breach of the consumer's right to information based on the factors that constitute the conduct. Consequently, their addition to the regulation on the consumer's information right in the LCP is unlikely to be a sufficient or comprehensive supplement. However, this is not required as the priority for laws such as the Commercial Law is to ensure the proper performance of trade and commerce in the market, rather than to protect the rights of consumers.
Thus, the general prohibitions in the LCP and other related laws that supplement it show inadequacies and shortcomings. All of them lack definitions that clarify the signs of misleading or deceptive conduct. They are especially lacking in description and factors to identify misleading and deceptive information. Also, the operation of specific behaviours governed by these laws appears to be somewhat vague. Save for the portion in relation to misleading advertising, Article 10.1 of the LCP merely states the prohibition of two forms of conduct concealing information relating to products or providing misleading or deceptive information. These remain unclear since many questions regarding their nature have not been clarified or have answers provided, including whether they include half-truths. The next section examines similar questions explored thus far in the context of the legal regime in Australia.
The nature and ambit of the prohibition against misleading or deceptive conduct in the Australia consumer law
The Operation of ACL provisions prohibiting misleading or deceptive conduct
Consumer protection against misleading or deceptive conduct is stipulated in the ACL on two levels: general protection, and specific protection. The general protection against misleading or deceptive conduct in the ACL, as will be discussed in the following sections, has met the requirements for regulation. The ACL is designed to provide general standards or norms constituting unacceptable conduct to guide the commercial practices of businesses. As a result, regulatory provisions containing definitions of the nature, and structure of misleading conduct are provided for. In reality, business activities and practices are always subject to rigid rules in the statutory provisions. Thus, the general description of the most common features in the section on misleading or deceptive conduct makes it possible to cover and predict many of the potential forms of conduct that lawmakers may not acknowledge at the time of designing the statutory provisions. Provisions on general protection, therefore, requires broad, abstract legislative thinking, a comprehensive descriptive structure, and the most accurate words that can determine the nature of the prohibition. With respect to the section on specific protections in the ACL, the provisions concerning the types of conduct shows an attempt to capture most if not all types of potential breaches in this area. Simultaneously, as discussed in the following sections, each kind of conduct is adequately noted in the specific protections and contributes to clarifying the diversity of prohibitions, and efficiently contributing to the protection of the consumer's right to information for the ACL.
Additionally, a developed body of case law relating to disputes concerning misleading or deceptive conduct in Australia has contributed significantly to the determination of clear and detailed standards of prohibition. This actual practice is beneficial for the protection of consumers’ right to information for two main reasons. First, Australia belongs to the common law system, where precedentsFootnote 72 are a source of interpreting laws. Precedents are valuable as ‘guidelines [that guide the courts] on the path to their decisions’Footnote 73 since they have been applied to real cases. Second, the regulations against misleading or deceptive conduct in the ACL are reproduced from those of the TPA without a difference in its essence.Footnote 74 Thus, some longstanding cases remain applicable to the present with the effect of the ACL.
General protection against misleading or deceptive conduct in the ACL
Unlike the statutory structure in the LCP which asserts the rights of consumers and then stipulates the specific prohibition, the regulation against misleading or deceptive conduct in the ACL follows a structure that starts with the general prohibition and then provides a particular prohibition of each form of conduct. Section 18 (1) of the ACL sets out the general prohibition: ‘a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. This clause appears to have three elements which should be clarified or explained in cases as a basis for the application of the regulations: (a) determine what forms of ‘engage in conduct’ are; (b) define how is considered as ‘in trade and commerce’; and (c) describe what ‘misleading or deceptive conduct’ means. The analysis of each element in the general prohibition clause as discussed below shows its significant effect in performing the task as an overall provision of the legal framework of prohibition in the ACL.
‘Engage in conduct’
Determination of what constitutes ‘engage in conduct’ in section 18 of the ACL is the direct objective of the prohibition, indicating what forms of conduct are considered ‘misleading or deceptive’. At the most general level, the forms of conduct explained in section 2(2) of the CCA consist of two forms of conduct: ‘doing or refusing to do any act’. The CCA also specifies that ‘refusing to do any act’ means that the two forms in sub-section 2(2)(c) of the CCA include ‘refraining (otherwise inadvertently) from doing that act or making it known that the act will not be done’. These regulations, in conjunction with section 18 of the ACL, are quite adequate and fulfill their role as catch-all provisions in the classification of misleading or deceptive conduct without neglecting any type of conduct that could be available in actual situations.
Additionally, some other forms of conduct are provided by judges through their comments and explanations accompanying case law. Judicial interpretation responds to questions raised by the facts of disputes, such as whether misleading or deceptive conduct refers to ‘representation’. If the concept of misleading or deceptive conduct is understood in the context of the relationship between a seller and consumer, ‘representation’ will be identified as a type of conduct. For the first time, the Australian High Court in Butcher v Lachlan Elder Realty Pty Ltd Footnote 75 noted that the term ‘conduct’ in section 52 of the TPA included ‘representations’. It may comprise many pre-contractual and post-contractual misrepresentations including advertising, franchising, property sales, and rent.Footnote 76 This is also evident in Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd in which the judges held that ‘misleading or deceptive conduct under section 52 of the TPA generally, though not always, consists of representations.’Footnote 77
However, without constraining misleading or deceptive conduct to representation, judges and legal scholars have extended their consideration of conducts to specific types of ‘refusal to perform’ conduct such as silence, omission, non-disclosure, opinions, statements as to future matters, statements of law, and the authorized use of character images.Footnote 78 Corones divides misleading or deceptive conduct into the two categories of conduct, namely silence and intermediary involving the relaying of information (the conduct in the form of performing a particular action), while Lockhart divides conduct into the two categories of acts and omissions.Footnote 79 As expressed in Commonwealth Bank of Ireland Act v Mehta,Footnote 80 silence may be considered a violation of a duty of disclosure since it may be characterized as misleading or deceptive. In particular, Crones specifies two broad categories including ‘silence in isolation’ and ‘half-truth’. Accordingly, ‘silence in isolation’ is construed as the deliberate decision to withhold information,Footnote 81 and ‘half-truth’ is defined as a statement that is intended to deceive by being only partly true, or the information ‘is true on its face, it misrepresents the true state of affairs because of what it is unsaid’.Footnote 82 ‘Half-truth’ is divided into two sub-categories – the first is providing incomplete information, and the second is failing to disclose subsequent changes, which render that information no longer accurate.Footnote 83 These regulations and judicial pronouncements protect consumers’ interests against a variety of potential breaches of the right to information.
‘In trade and commerce’
The breadth of ‘in trade and commerce’ has been the subject of extensive judicial and academic scrutiny. It helps to determine more specific characteristics of conduct that can be prohibited by the ACL. The term ‘in trade and commerce’, as clarified and analyzed in Concrete Constructions (NSW) Pty Ltd v Nelson, refers to ‘conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character’.Footnote 84 The concept of trade and commerce also extends to statements made by persons who themselves are not engaged in trade or commerce, but their presentation is made ‘in such context and in such circumstances as to render them as a commercial character’.Footnote 85 Australian courts distinguish between ‘in trade and commerce’ and ‘in connection with trade and commerce’Footnote 86 by indicating the distinction of understanding these terms in practical situations. Accordingly, as analyzed in Concrete Constructions (NSW) Pty Ltd v Nelson, ‘in trade and commerce’ should be construed preferably from the narrow view, referring to the central conception of trade and commerce and not to the ‘immense field of activities’ in which corporations ‘may engage in the course of, or for the purpose of carrying on some overall trading or commercial business’.Footnote 87
Despite such conceptual discourse, practical situations continue to pose questions that require judgments to provide explanations for each case. These situations include the individual sale of real or personal property, statements made in the employment context, statements made in public debate, and statements made by those who are not directly engaged in trade or commerce but are made with the intention to influence the trade and commerce of other businesses.Footnote 88 Australian courts do not always choose to adopt the same interpretation and application to deal with these cases. The diversity of judges’ interpretations shows the variety of the different interpretative approaches available for the ACL.
For conduct in the context of individual sales, Australian judges have determined that an individual sale is not defined as a form of ‘trade and commerce’ because of two reasons discussed in Orbien v Smolobogov and Argy v Blunts: Individual sale is ‘not something done by the appellants in the course of carrying on a business’,Footnote 89 and ‘it lacked trading or commercial character as a transaction’Footnote 90 even though it uses ‘facilities commonly employed in commercial transactions’, or it uses agents to advertise, to make auction or negotiate a private treaty. This assertion is consistent across these two judgments.Footnote 91
However, for the statements made in the employment context, judges have provided a different set of explanations. In Concrete Constructions, the Court held that internal communication by one employee to another in the course of their ordinary activities are not characterized as being ‘in trade or commerce’, whereas in Patrick v Steel Mains Pty Ltd, Finucane v New South Wales Egg Corporation, and Walker v Salomon Smith Barney Securities Pty Ltd, judges agreed that the employment of staff for the purpose of carrying out its trading and commercial activities should be considered part of a corporation's trade or commerce; therefore, they can be included in the ambit of ‘in trade and commerce’.Footnote 92 In the case where statements are made in the course of public debate, such as films or advertisements, Australian courts confirm that whether such statements are made ‘in trade and commerce’ depends on whether it was ‘designed to advance or protect commercial interests of the exhibitor or publisher’.Footnote 93 With the variety of explanations presented by these judgments, the concept of ‘in trade and commerce’ has been well-clarified to play a significant role in determining prohibited conduct and help to enforce the ACL's consumer protection regulations efficiently.
Among the crucial factors constituting misleading or deceptive conduct are fault and intention. The TPA and the ACL do not have a specified statutory test to prove these factors in the case of impugned violations. Likewise, determining the effect of the conduct, as well as manifesting the cause and consequences of the violation that reflect the link between the behaviour and the state of mind of a relevant person or class of persons,Footnote 94 are not also identified in the laws. Thus, it should be made clear whether the breach of the consumer's right to information was carried out intentionally, or its consequence required to prove or not by way of application and analysis of the case laws. The Australian High Court does not recognize the requirement of intention as a necessary element constituting an infringement,Footnote 95 while it is essential to clarify that ‘conduct by silence’ must be an intentional failure to disclose information.Footnote 96 Likewise, for conduct to fall foul of the ACL, it can amount to a breach purely because it is misleading or deceptive in nature, regardless of whether a person actually have been misled or deceived.Footnote 97 Conversely, the consequential loss or damage from the infringement will be considered as the basis of liability and compensation for consumers.Footnote 98
What constitutes misleading or deceptive conduct?
Although the regulation on misleading or deceptive conduct in the ACL derives from the TPA, neither the TPA nor the ACL defines what constitutes misleading or deceptive conduct. In Seven Network Ltd v News Interactive Pty Ltd, it was determined that ‘it's not enough if the conduct simply causes confusion or uncertainty’.Footnote 99 On one hand, the conduct must have ‘a meaning which is inconsistent with the truth’.Footnote 100 On the other, the misleading or deceptive behaviour must ‘lead [the consumer] into the error’ or have a ‘tendency to lead a person into error.’Footnote 101 The definition also includes the existence of ‘a real or not remote chance or possibility regardless of whether it is less or more than fifty percent.’Footnote 102 Meanwhile, others argue that that it is likely to be unnecessary to investigate whether the conduct caused misleading and deception in a practical situation, since the phrase is understood more broadly.Footnote 103
Moreover, consideration of whether misleading or deceptive conduct includes confusion or not, and the difference between confusion and deception, determines the content of prohibition. By analyzing case law, the authors conclude that proof of confusion, a determination of which is a short but essential step,Footnote 104 appears as an evidential element for a deception;Footnote 105 however, it is not sufficient for the conduct to merely cause confusion.Footnote 106 The erroneous assumption doctrine was expressed by the Australian Federal Court in McWilliam's Wines Pty Ltd v McDonald's System of Aust Pty Ltd. There, the Court considered the misleading elements of representation applied in that case, and held that it is neither a breach of Article 52 of the TPA nor Article 18 of the ACL if the misunderstanding of consumers is not a result of the alleged conduct, but a consequence of their own erroneous assumption.Footnote 107
The centrepiece of the process of considering whether the impugned conduct tends to confuse consumers, is to view it as a whole and in context. It is, therefore, essential to examine the context of the conduct to discover the signs that satisfy the structure of the offense. Lockhart distinguished between the internal and external contexts and asserted that some elements cannot be ignored when analyzing the context of the violation.Footnote 108 In Parkdale Custom Built Furniture Pty Ltd v Puxu Ltd, Chief Justice Gibbs opined that it is impossible to just pick a few words when discussing the infringement allegedly caused by those words while ignoring other words that also contributed to its concept.Footnote 109 Likewise, statements in negotiations, brochures, or other forms of promotion such as advertisements are reviewed in their entirety or holistically in the context of the whole document.Footnote 110 While an analysis of the internal context requires a comprehensive understanding of the nature of the conduct, an examination of the external context must consider issues arising from the environment in which the conduct influences. The external concept is composed by factors that relate directly to the plaintiff and defendant rather than to any class of persons to whom the conduct is directed. With case law, these factors have been supplemented by Australian judges, including the nature of the parties, the character of their transaction, and their conversations, which can attribute to the information they know.Footnote 111 The elements of the external concept are also focused on the medium size of the target audience, audiences to which the conduct is directed, the relationship between the alleged contravention and the victim, and the habits and characteristics of the market where the conduct is associated to several other factors.Footnote 112 Australian judges often focus and examine the offending elements of the impugned conduct from the perspective of their impacts to the community in general, before isolating the characteristic features of the group audience that the conduct is targeted at, and considering whether the prohibited elements are present in such conduct.Footnote 113 To conclude whether an impugned conduct can cause confusion or deceive the target group, the identification of the specific characteristics and knowledge of a target audience group is an essential tool to determine the suitability of the impugned conduct. With respect to behaviour or words directed at the general public, when a determination of a specific purpose for a particular group audience cannot be made, it does not suffice that only some people are confused under the conduct's influence.Footnote 114
A four-step test
In Taco Company of Australia Inc v Taco Bell Pty Ltd,Footnote 115 the Australian Federal Court developed a four-step test to determine whether a conduct is misleading or deceptive based on the effect of the conduct on the target. This four-step test requires courts to: (1) determine the target section of the public to whom the conduct is directed, (2) examine the characteristics of all those falling within the target section relating to their knowledge and understanding such as their intelligence, education, and their age; (3) consider the inner context to identify whether the conduct is or is likely to be misleading or deceptive; and (4) review and evaluate evidence of misrepresentation or deception caused by the conduct rather than by other factors, in which there must necessarily be a sufficient nexus between the conduct and misunderstanding.Footnote 116
While these steps are almost uniformly applied in cases, the second step of identifying consumer misconceptions differs in the point of view of some cases. In applying this test, the analysis of the Australian judges in recent cases tend to favour the selection of ordinary or reasonable persons. However, some cases identify the necessity of determining whether some people or hypothetical individuals are mistaken due to the conduct's consequence. In some cases, the Australian courts have held that it is necessary to examine the reaction of ordinary or reasonable members of the class to whom the representation is directed,Footnote 117 while other Australian judges held that this is unnecessary.Footnote 118 According to Justice Finkelstein in .au Domain Administration Ltd v Domain Names Australia Pry Ltd, it would be sufficient for the court to require that the conduct has likely misled only a hypothetical individual from the determination section of the group.Footnote 119 Recently, a decision in Telstra Corporation Limited v Singtel Optus Pty Ltd before the Australian Federal Court, which followed the decision in ACCC v TPG Internet Pty Ltd, confirms that the test that should be applied is whether ordinary and reasonable members of the class would be misled, with the number of reasonable persons who might be misled being irrelevant.Footnote 120
The process of considering the audience factor as part of the external context in Australia also has many theoretical approaches. The High Court of Australia have adopted two approaches for determining the reasonable member of the target audience: a context-based approach and a pragmatic approach. While the first one is thought to be normative and abstract, the latter tends to seek to concretize the factors based on the facts of the case. In ACCC v TPG Internet Pty Ltd, the High Court of Australia applied the pragmatic approach that adheres to the actual factors of a specific case to consider whether the subject was affected by the alleged breach. In this case, the Court considered a possibility for impugned advertisements to fail to take reasonable care of a targeted audience's interests by identifying whether the targeted audience viewed the advertisements with ‘their substantial purchase in mind focused on the subject matter of their shopping’, or whether the advertisements were ‘an unbidden intrusion on the consciousness of the target audience’.Footnote 121 Meanwhile, the application of the context-based approach is illustrated in Butcher v Lachlan Elder Realty and Miller & Assoc Insurance Broking Pty Ltd v BMW Aust Finance Ltd by defining the standard of care issue of specific individuals based on a consideration of whether the success or failure of making reasonable inquiries of an experienced and professional party in a commercial transaction is relevant to the misleading non-disclosure.Footnote 122
Lockhart mentions that the process of establishing misleading or deceptive conduct consists of three steps: it is necessary to (a) define whether the impugned conduct was done in trade or commerce; (b) determine what the impugned conduct/s meant; and (c) examine whether the alleged act was misleading or deceptive.Footnote 123 At the primary stage of defining the first factor, similar fact evidence, one of the analytical techniques defined as ‘evidence of facts similar to those which are in issue at trial’,Footnote 124 can be applied. Whether an impugned conduct was performed depends on the admission that ‘just more than one occurrence of a similar fact, perhaps making the occurrence in question more probable’.Footnote 125 The assessment of similar fact evidence is based on the criterion of admissibility of the probative force of evidence, that ‘it raises, as a matter of common sense or experiences, the objective improbability of some events having occurred other than alleged’.Footnote 126 The significant probative value of the evidence is evaluated by examining whether similar fact evidence provides ‘striking similarity’, ‘unusual features’, ‘underlying unity’, and ‘system or pattern’Footnote 127 in relation to an impugned conduct to conclude the probability that the conduct was performed. Accordingly, elements used to assess the probability of the existence of an impugned conduct include (a) opportunities for which the conduct may cause misleading, (b) similarity between the impugned conduct and evidence of similar facts; (c) the significant distinction between the situation of a supposed breach in which the consumer is affected, and (d) the time elapsed between the earlier alleged conduct and the current one.Footnote 128
The second and the third factor are ultimately examined based on analyzes of the characteristics of the impugned conduct and definition of a ‘misleading and deceptive conduct’ to determine whether the overall net impression is misleading or deceptive. Circumstantial evidence, including ‘habit and attitudes of the conduct's the target audience, relevant marketing techniques in common use, the setting in which a person is likely to be exposed to the conduct and the target audiences’Footnote 129 may be used in determining whether the conduct is misleading or deceptive in nature. It should also be noted that conduct is defined broadly, rather than focusing on a single manifestation. When a representation conveys more than one meaning to reasonable consumers, one of which where the conduct conveys a misleading or deceptive and is directed at a significant number of people regardless of whether they are misled or deceived or not, the conduct is likely to also violate the prohibition.
Specific protection relating to misleading or deceptive conduct in the ACL
Division 1 of Part 3.1 of Chapter 3 of the ACL provides specific prohibitions in 37 provisions. Different from those involving general protection, these provisions contain three features: (1) misleading or deceptive conduct is pleaded by reference to a ‘representation’, (2) a ‘representation’ is characterized as ‘false and misleading’ rather than ‘misleading or deceptive’ as mentioned in the general protection provisions, and (3) they explicitly enumerate types of misleading representation. In this section of the ACL concerning specific protections, the word ‘false’ is defined as ‘contrary to fact’ and does not require the deliberation of the person making the representation.Footnote 130 Thus, the use of the word ‘false’ in the same way as using the term ‘misleading or deceptive’ in the general protection provisions means that there are no differences in the application between the two sets of provisions. However, the use of the term ‘representation’ tells a different story.
A ‘representation’ in the specific protection provisions refers to ‘a statement, made orally or in writing or by the implication of words or conduct’.Footnote 131 A representation may consist of express representation and implied representation, including something written, something oral, a gesture, a silence, or a combination of these things.Footnote 132 Some Australian judges asserted that misleading or deceptive conduct do not only include representation forms but possibly other forms. Chief Justice Gleeson and Justices Hayne and Heydon observed in Butcher v Lachlan Elder Realty Pty Ltd that the expression ‘conduct’ extends beyond ‘representations’.Footnote 133 In Henjo Investment Pty Ltd v Collon Marrickville Pty Ltd, although Lockhart J agreed that misleading or deceptive conduct generally includes representations both made expressly or through silence, he commented that ‘it is erroneous to approach [section] 52 on the assumption that its application is confined exclusively to circumstances which constitute some form of representation’.Footnote 134 He also stated that ‘section 52 operates in a variety of situations. It may not be limited to cases where the conduct complained of is a misrepresentation, although that is the normal cases which present itself.’Footnote 135 Further, as mentioned in Henjo Investment Pty Ltd v Collon Marrickville Pty Ltd, disregarding whether the conduct is representational in character or not, it is necessary for the courts to investigate the nature of the impugned conduct to define whether it constitutes a breach.Footnote 136
However, in general, expressions of ‘conduct’ tend to refer to something done by the defendant rather than concern consumers, while the manifestation of ‘representation’ is likely to be neutral. As such, if the assessment of whether there is a contravention of the ACL or not shifts from being based on the respondent's conduct to relying on the possibility for consumers to be misled, then ‘representation’ is more broadly conceived than ‘conduct’. This is because, from the consumer's perspective, the instances where they can be misled can only be discovered as a result of a comprehensive examination of the case as a whole and in context, where all forms of conduct have to be taken into account and evaluated. Silence or non-disclosure is a good example of a conduct to analyze. In such a context, there are different ways of justifying whether silence or non-disclosure is a type of representation or conduct when it constitutes a contravention of the ACL. Accordingly, apart from being considered as a form of implied representation, silence is construed as something ‘actionable’ in the context of a conduct.Footnote 137 However, it may be understood that silence is considered to be the ‘negative film of a photograph’ of behaviours. Regarding its nature, the interactions and information of behaviour by silence carry the same meaning as that of action, though it is by omission. Silence still conveys information that consumers may understand to be absent. Therefore, silence should also be understood as a form of representation.
Although they assert that ‘representation’ is not co-extensive with ‘conduct’,Footnote 138 Australian judges do not limit their legal decision within the superficial ambit of these terms. The use of precedents and analogy in this common law jurisdiction supplements the legislation and allows courts to extrapolate from decided cases when the present case is ‘concerned with the application of a statutory text, expressed in general terms, to particular facts’.Footnote 139 The extrapolation has been formally admitted as one of the ways that help judges resolve disputes without hesitancy when, as stated in Google Inc v Australian Competition and Consumer Commissions, ‘there is no little danger in attempting to extrapolate from the decided cases to a rule of general application’.Footnote 140 However, it is important that each case is considered on the basis of reference to the statutory text and the particular facts identified as relevant to the application of that text.Footnote 141
Specifically, consideration of the forms of conduct or representation that a case involves, apart from explicitly examining the relevant surrounding facts and circumstances, a proper understanding of the full factual context in which respondent's ‘conduct’ or ‘representation’ was made. Although there is a dissimilarity between the ambit of what counts as ‘conduct’ and ‘representation’ respectively, the word ‘conduct’ in the general prohibition section of the ACL provides a reference to statutory text for the courts to decide cases, allowing flexible application that are not listed in specific provisions. An example of this is the judgments in cases involving silence including silence in isolation, half-truth, omission, and intermediary involving the relaying of information. Among these cases, cases concerning half-truth – where defendants provide information that is true on its face but causes misconception in consumers due to a part of information being concealed – was influenced, very early on, cases concerning this prohibition in the TPA.Footnote 142 These types of infringements are easily overlooked because statutory text cannot cover all signs of a breach. Thus, this is one of many proofs of the success and effectiveness of consumer information protection laws in Australia.
Insights to be gained from Australia
The most substantive difference between the regulation of misleading or deceptive conduct in Vietnam and Australia is the structure and designation of statutory provisions. In Australia, except for consumer protection in banking services,Footnote 143 all other regulations relating to the protection of the consumer's right to information are in the ACL. On the other hand, in Vietnam, these temporary regulations are not solely in the LCP but scattered across many different laws. Further, as discussed above, these additional regulations in various Vietnamese laws are unclear and not linked by a reference to an appropriate statutory text that should be mentioned in the LCP. These differences may lead to a lack of efficiency in the protection of consumer rights in Vietnam for a number of reasons.
First, structurally, the LCP does not contain general protections on top of specific protections with respect to prohibition against misleading or deceptive conduct as compared to the ACL. Such general protection is extensively provided for in the ACL, with the use of terms such as ‘engage in conduct’, ‘in trade and commerce’, and ‘misleading and deceptive’. These terms establish the necessary description for identifying the constituent signs of a contravention, thereby limiting omission of some forms of breach in practice. Article 8 of the LCP, instead of defining a general ban as in the ACL, merely asserts the protection of the consumer's right to information. Neither are there any forms general protection in other statutes that supplement the LCP. This lack of a general protection section in the LCP results in a gap in the most important elements that underpin the theory and practice of enforcing consumer information protection in in Vietnam. The ACL also does not contain two vital factors to determine breach: factors that determine the subjects and the forms of conducts’ performance. More specifically, the signs for identifying the subject are also aimed at the ultimate purpose of defining the types of conduct and determining whether a conduct constitutes a ‘misleading or deceptive conduct’. Moreover, the LCP's lack of a general prohibition provision could lead to a myopic focus only on types of misleading information instead of misleading conduct which is an essential element to constitute a contravention. This clearly distinguishes the LCP from the ACL: as Vietnamese lawmakers focus on information relating to products, Australian legislative agencies emphasize the presentation as to goods and services. Neither ‘conduct’ nor ‘representation’ are found in the LCP, consequently, both popular and subtle forms of misleading or deceptive conduct are not regulated adequately in the law.
Second, the expression of forms of breach in the LCP are not adequate due to the provision of only two forms of conduct, including misleading advertising, and providing misleading information about goods and services. These conduct may be categorized as forms relating to information disclosure as to products. However, species of misleading or deceptive conduct are not only limited to advertising and other categories of providing information. As explained in the above analysis of the regulations of the ACL, the concept of conduct is approached and determined in respect of the subject, the mode of expression, and even inaction. Professional legal drafting in conjunction with Australian courts’ employing the common law and using precedents to purposively interpret legislation can help judges to handle effectively breaches of the ACL. Clearly, a single provision in the LCP (including other complementary statutes) is incapable of encapsulating all forms of breaches.
It can be clearly seen that silence and half-truth forms of misleading conduct relating to employment, false or misleading representations about a sale of land are absolutely absent in the LCP. As discussed above, the Vietnamese Law on Quality refers only to the prohibition against concealing information about the possibility of causing loss to the safety of goods while ignoring many other relevant types of information. Meanwhile, the type and amount of information about particular products and services that traders must provide to consumers are set out as information standards in the section 134 of the ACL.Footnote 144 With the technique of using overarching prohibition in the general protection section and then specifying forms of conduct, the ACL maximizes its coverage capacity, avoiding omissions that can occur in a very diverse commercial practice. Because of the absence of a general protection section, even though the LCP or other related Vietnamese laws attempt to enumerate specific breaches against the consumer's right to information, it is impossible to cover all new forms of conduct that may emerge due to rapid change and development of the market. Thus, the substitution of an overarching prohibition provision with a general provision affirming the right is the option for containing many of the inadequacies that need to be overcome in the LCP.
Based on the above-discussed differences between Vietnamese and Australian consumer law, it is suggested that there are a variety of law reforms that will enhance the operation of Vietnamese consumer law.
First, a general protection section should be added in the LCP to create standards of business conduct in the market, including a general ban in the form of a catch-all provision against misleading conduct or representation in trade and commerce. The terms ‘conduct’ or ‘representation’, ‘in trade and commerce’, ‘misleading or deceptive or is likely to mislead or deceive’ should be explicitly used in this general protection section.
Second, it is necessary to supplement the LCP with specific protections which address identified forms of business conduct as mentioned in the ACL. Accordingly, the LCP should set out the statutory rule to prohibit certain false or misleading representations and information standards about the information required to be provided by suppliers of consumer goods and of services. With these two structural construction techniques, the LCP will be able to regulate instances of silence in isolation, misleading omission, half-truth and other potential forms of contravention, which are not currently regulated in Vietnam.
Third, a test of examining whether impugned conduct is misleading or deceptive should be established in a legal document in order to provide specific guidance for upholding and enforcing the obligations created by the LCP. It is proposed that this test should consist of four fundamental steps derived from the Australian statutory framework:
(1) define the relevant section of the public;
(2) consider the characteristics of all those falling within the relevant section relating to their knowledge and understanding such as their intelligence, education, and their age;
(3) identify whether the conduct is or is likely to be misleading or deceptive by its nature without requiring that somebody was in fact misled or deceived, and without the need to prove that actual damage to have occurred due to the misleading or deceptive conduct;
(4) evaluate any evidence of confusion or deception caused by the conduct to find a causal link between the defendant's conduct and the misconception.
Vietnam has undergone strong strides in its efforts to reform the economy and build a corresponding legal system that governs social relations in the developing economy. However, this country is still enduring a period of adaptation to keep up with the legal development of many countries around the world. It is in realizing the limits of a young legal foundation that seeking solutions for reforming consumer law in Vietnam is an open opportunity. By adopting this matrix of the LCP reforms that are modelled on the ACL, it is suggested that Vietnam can improve regulations against misleading conduct to protect consumer's right to information, and create an equitable environment for trade and commerce.
Acknowledgements
We thank Professor Rafiqul Islam for his valuable comments.
Author Biographies
Lam Uyen Lu, Lecturer, School of Law, the University of Economics Ho Chi Minh City.
Niloufer Selvadurai, Professor of Law, Macquarie Law School, Macquarie University, Australia; Solicitor and Barrister of the Supreme Court of New South Wales.
