Freedom of Expression in Việt Nam - Part 2: Interpretation and Limitations

Lê Giang wrote this Vietnamese article, published in Luật Khoa Magazine on June 2, 2025.

While freedom of expression was once labeled a “Western value” in Việt Nam, globalization has ushered in a broader acceptance of universal human rights. Core values such as dignity, the right to life, and liberty have become increasingly acknowledged and safeguarded globally. Freedom of expression is no exception, even within Việt Nam.

This acceptance, at least officially, began quite some time ago. In 1982, during Việt Nam's most ideologically rigid era, the state ratified the International Covenant on Civil and Political Rights (ICCPR)—one of the three core United Nations human rights treaties forming the International Bill of Human Rights.

The foundation of international legal protection for freedom of expression lies within Article 19 of the ICCPR. This article states that everyone possesses the right to freely hold opinions and to articulate them in various forms. Specifically, Article 19 breaks down freedom of expression into two essential parts:

1. The right to seek, receive, and impart information.
2. The right to express opinions, regardless of the medium—be it verbal, written, visual, or otherwise. 

At its core, freedom of expression requires a balance between rights and responsibilities, and between individual liberty and social relationships. This balance is emphasized by Paragraph 3 of Article 19, which states that the exercise of freedom of expression is not absolute. Instead, it comes with “special duties and responsibilities.”

This legal standard directly aligns with philosopher John Stuart Mill’s renowned harm principle. He argued that individuals are free to act and express themselves, but only to the extent that their actions do not infringe upon or harm the rights of others.

It is important to note that the ICCPR permits restrictions on freedom of expression, but only under very specific and stringent conditions:

1. Legality: Any restriction must be clearly defined by law. They need to be based on specific, transparent, and reviewable legal foundations. Vague terms, such as “negatively affecting public morals,” are insufficient for imposing arbitrary censorship.
2. Legitimacy: The purpose behind any restriction must be entirely legitimate. This includes protecting national security, public order, public health, morals, or the rights and reputations of others. Mere inconvenience or disagreement is not a sufficient reason; the restriction must be serious, clear, and justifiable.
3. Necessity and Proportionality: The restriction must be absolutely necessary and proportionate within a democratic society. A critical news article, for example, cannot be treated as a threat to national security, nor should a peaceful expression of opinion ever be criminalized.

This is the international “measuring stick” used to assess the legality of any limitations on freedom of expression. Legal scholars refer to this standard as the Three-Part Test. This standard finds full reflection within Việt Nam’s own 2013 Constitution, particularly in Articles 25 and 14.

Article 25 states:

“Citizens have the right to freedom of speech, freedom of the press, access to information, assembly, association, and demonstration. The exercise of these rights is governed by law.”

Article 14—stipulating limitations of human rights:

“Human and citizen rights can only be restricted by law in cases necessary for reasons of national defense, national security, social order and safety, social ethics, and public health.”

On paper, Articles 25 and 14 appear to align with the ICCPR's standards. However, two important issues need to be addressed here.

1. Defining Freedom of Expression in Việt Nam: What form does freedom of expression truly take in Việt Nam? A promotional piece from the Ministry of Justice for a 2015–2020 program, aimed at “Strengthening dissemination of the basic contents of the ICCPR and Vietnamese laws on civil and political rights,” defines freedom of expression as:

“Freedom of expression and freedom of the press are fundamental citizen rights. Freedom of expression is the human right to freely seek, receive, and impart information and opinions in all areas of social life, whether by speech, writing (handwritten or typed), electronic means (email, social media), or other forms (drawings, artistic performances, music).”

2. Regulatory Legal Sources: Where are the legal sources that regulate and define this right and its limitations? According to the same promotional material, the applicable legal sources include the 2013 Constitution, the 2018 Cybersecurity Law, and the 2016 Press Law.

According to the government's interpretations, Việt Nam's understanding of the limits to freedom of expression drastically diverges from international norms. Instead of upholding constitutional principles, it emphasizes protecting the Communist Party's legitimacy, the state's “honor,” and “social morality.” This critical difference is evident in several key ways:

1. The Notion of “Conditional Rights”: While Article 25 of the 2013 Constitution affirms freedom of expression, it immediately adds that its exercise is “governed by law.” This stands in stark contrast to international law, where human rights are fundamentally presumed to be enjoyed by default. They can only be limited if the strict Three-Part Test—legality, legitimacy, and necessity/proportionality—is met, as stipulated in Article 19.3 of the ICCPR.
2. Vague and Imprecise Legislative Techniques: Việt Nam's legal system consistently employs abstract, unquantifiable terms that are ripe for arbitrary interpretation. Phrases like “distorting the truth,” “fabrication,” “causing public confusion,” “insulting leaders,” and “negatively affecting society” are frequently used, creating an environment of legal uncertainty. 
3. Incompatibility with International Law: Conversely, international law demands clarity and the foreseeability of legal consequences, ensuring citizens know what is prohibited and what the repercussions of their actions will be. This is not present in Việt Nam’s legal system.
4. Law Protecting the State, Not Individuals: Articles 117 and 331 of Việt Nam's 2015 Penal Code prioritize the “interests of the State” over the fundamental rights of its citizens. This directly contradicts international human rights standards, which dictate that the state itself should be constrained by law in order to protect individuals. This approach signals a distinctly state-centric model of the rule of law, in contrast to the rights-based model deeply embedded within the spirit of the ICCPR.

While Việt Nam’s Constitution and numerous legal documents formally assert freedom of expression as a fundamental right, the reality of how this right is restricted paints a starkly different picture.