Since the issuance last October of Decree No. 71/2022/ND-CP (“Decree 71”), the differentiation of film vs. non-film content has become increasingly important for pay-TV service providers in Vietnam, because they are subject to completely different licensing requirements. With the effectiveness of Decree 71 on January 1, 2023, overseas providers of over-the-top (OTT) pay-TV services, including video on demand (VOD) content, to Vietnamese users are subject to licensing requirements and the establishment of a local presence in Vietnam. Meanwhile, the new Cinema Law promulgated on June 15, 2022, and its guiding Decree No. 131/2022/ND-CP dated December 31, 2022—both of which also took effect on January 1, 2023—do not impose any licensing requirements on film disseminators.

Although there are ambiguities in Decree 71’s wording, the Ministry of Information and Communication (MIC) and the Authority for Broadcasting and Electronic Information (ABEI) under the MIC have confirmed orally in a closed industry meeting, without written confirmation, that for VOD film-only content, OTT pay-TV service providers are exempted from the licensing requirements of Decree 71 and are instead subject to regulations of the Cinema Law. This is why film vs. non-film content has become critical in shaping the business models of overseas pay-TV service providers.

In this article, we provide an overview of the current regulations and draft regulations with regard to the classification/rating of film content under the regulations of the Cinema Law and its sub-laws, and the classification/rating of non-film content under the regulations of Decree 71.

Film Classification/Rating

Under the Cinema Law, “films” are defined to include feature films, documentaries, cartoons, and films of combined genres. The law explicitly provides that “films” do not include recorded products for disseminating news, art shows, video games, recorded products that show the activities of one or more people and describe events and situations, or reality shows. These exclusions could be interpreted to be “non-film” content.

Starting from January 1, 2023, in respect of film dissemination in cyberspace (notably including the streaming of films in the form of OTT TV services), onshore and offshore film disseminators are permitted to self-rate their films according to the government’s regulations before disseminating them in cyberspace, and they must display film ratings and warnings according to the regulations of the Ministry of Culture, Sports and Tourism (MOCST). However, if (i) the disseminators do not meet the conditions for self-rating of the films set out by law and (ii) such films have not yet been granted a Film Classification License or a Broadcast Decision (as the case may be), the film disseminators must request the MOCST or its authorized agency to rate the films for them.

Decree 131 provides the set of conditions for a film disseminator to perform the mandatory self-rating of films to be disseminated in cyberspace, which include:

• Having a film rating council or technical software or a mechanism to rate the films according to Vietnamese regulations on film rating and taking responsibility for the results of the film rating;
• Having a plan to amend and update film rating results at the request of the cinematography authority (for most providers, this is the Cinematography Department under the MOCST);
• Having an administrative tool to support the rating of films according to each of the rating criteria and to flexibly display the updated rating immediately after the rating is changed; and
• Having a technical plan and process for suspending and removing films at the request of the cinematography authority. Upon a request for removal of the film, the disseminator must proceed to implement the removal functionality available on the administrative tool.

In addition, Decree 131 also provides for the formality requirements for an online film disseminator to request recognition from the MOCST that they meet the self-rating conditions, as well as the procedures for the MOCST to receive and handle the dossier.

With regard to age rating, from January 1, 2023, the Cinema Law prescribes the following new categories for films:

• P rated: Eligible for dissemination to viewers of all ages.
• K rated: Eligible for dissemination to viewers under 13 years old, provided that they are with their parents or guardians.
• T13 rated (13+): Eligible for dissemination to viewers from 13 years old or older.
• T16 rated (16+): Eligible for dissemination to viewers from 16 years old or older.
• T18 rated (18+): Eligible for dissemination to viewers from 18 years old or older.
• C rated: Prohibited from dissemination.

Apart from age ratings, online film disseminators (OTT TV service providers) are also required to display rating descriptors and warnings. The requirements are provided in a draft circular of the MOCST on film rating criteria and instructions for displaying age ratings and rating descriptors that was issued for public comments on September 21, 2022 (“Draft Circular on Film Ratings”). The Vietnamese version of this Draft can be accessed here and its Appendix can be accessed here.

According to the Draft Circular on Film Ratings, the rating descriptors on OTT TV platforms must appear on a black stripe displayed on the screens before the film starts; while the rating must be clearly and prominently displayed before the film starts and must keep appearing in the left corner of the screen during the entire streaming period. For example, the rating and rating descriptor for T18 films (films that are allowed to be disseminated to viewers aged 18 and over) should be displayed as: “T18: Strong violence, sex, language, drug abuse.” Rating descriptors are mandatory for films rated T13, T16, and T18; for films rated below T13, these descriptors are not mandatory, but are recommended.

Non-Film VOD Classification/Rating

Currently, under Decree 71, there are only regulations on the rating of sports and entertainment programs, which are subject to being self-edited and self-rated by the licensed OTT service providers before being provided on OTT services, and must display warnings throughout the process of provision of services in order to ensure that the programs do not commit violations of the law.

Detailed proposed regulations for the rating of these sports and entertainment programs have been provided in a Draft Circular on Non-Film VOD Content Rating (“Draft Circular on Non-Film Ratings”), the Vietnamese version of which was posted on the MIC website for public consultation from February 27 to April 27, 2023, and can be accessed here.

Under the Draft Circular on Non-Film Ratings, the age ratings for entertainment programs are similar to those for films under the Cinema Law as mentioned above (i.e., P, K, T13, T16, T17, C), with further details provided in an appendix.

The ratings for entertainment programs are based on factors including topic and content; violence; nudity and sex; drugs, stimulants and addictive substances; horror; vulgar images, sounds, and language; and dangerous behavior that is easy to imitate.

In general, entertainment programs are to be rated in consideration of the manner of expression; specific situations and contexts; interactivity; frequency; duration; level of detail of images, sound, lighting, and dialogue; and the level of impact of the program on viewers and listeners, in which the importance of the context and the level of impact on viewers and listeners are priority factors in rating the program.

Entertainment programs are rated at a lower level (e.g., P, K, T13) when:

• The program content is depicted verbally rather than visually; and
• The images and words of the program have a low impact on viewers/listeners.

Entertainment programs are rated at a more stringent level (e.g., T18, C) when the program content:

• Contains more details, including close-ups and slow motion;
• Uses highlighting techniques such as lighting, perspective, and resolution;
• Uses special effects such as light, sound, noise, resolution, color, image size, characteristics, and tones;
• Is realistic instead of stylized; and
• Encourages interaction.

The principles for displaying the rating descriptor of entertainment programs include:

• The rating must be displayed clearly and prominently in the program introduction/display folder on the device’s screen interface so that listeners and viewers can make a decision to listen to or watch the program provided on the service.
• For TV programs and audiovisual programs: The rating must continuously appear in the upper left or right corner of the screen during the program broadcast, ensuring that it does not overlap with the service icons or other icons.
• For radio programs and audio-only programs: There is no need to display the rating during the program broadcast.

Warnings for Non-Film Content

The Draft Circular on Non-Film Ratings also provides principles for displaying warnings, as follows:

• For entertainment programs classified from K to T18 and sports programs in extreme sports, combat sports, and martial arts: Warnings must be displayed.
• For entertainment programs that are reality TV shows; art performances; TV talent contests; exhibitions of risky and dangerous acts, with the risk of causing injury; or fictional TV shows based on real-life events: There must be warning content addressing that viewers should not imitate and follow the acts in these programs. In these programs, there must be warning text at the bottom of the screen during the program.
• C-rated programs are not allowed to be provided on the service.

The display of a warning must be done before and during the broadcast of the program using one or more appropriate methods, including but not limited to verbal or written warnings, such as:

• For TV programs and audiovisual programs: Display/play a written or verbal warning at least three seconds before the broadcast, right below the rating icon for entertainment programs; display the warning up to three times during program broadcast for programs with a duration of 15 minutes or more.
• For radio programs and audio-only programs: Play a verbal warning at least three seconds before broadcasting the program.

Outlook

Because VOD OTT TV service providers, under the Cinema Law and Decree 71, can now self-rate films and non-film content, it is important that they know how this rating is regulated in order to fully comply with Vietnamese law before providing VOD OTT TV services to Vietnamese users.