In a legal memo released today, two renowned international law experts recommend that Telenor Group and M1 Group suspend the proposed sale of Telenor’s subsidiary in Myanmar, while they conduct suitable due diligence and allow for adequate scrutiny of the deal.
The legal memo notes that under international law, states have a responsibility to prevent human rights violations, including by companies registered in their territory.
According to the memo, the Norwegian and potentially Lebanese governments have increased responsibility as they have the option to scrutinise the Telenor Myanmar sale, because Telenor is majority-owned by the Norwegian government and M1 Group is owned by the family of the Lebanese Prime Minister.
The legal memo, written by Australian barristers Doctor Felicity Gerry QC and Daye Gang, has been shared with Norway’s Minister of Trade and Industry and the Telenor Group and M1 boards.
It comes as the Norwegian telecom multinational proceeds to transfer their Myanmar business, along with the historical call data of over 18 million customers, to a joint venture of M1 Group and the Myanmar military-linked company, Shwe Byain Phyu Company Limited.
According to media reports, Shwe Byain Phyu will own 80% of Telenor Myanmar when the sale is completed.
The memo highlights Shwe Byain Phyu’s multiple links to sanctioned entities and finds that Telenor and M1 Group could be held liable for breaching sanctions or being complicit in the sanctions-busting financing of international crimes.
The lawyers drafted the memo on the instruction of the Australian Centre for International Justice (ACIJ), on behalf of the Centre for Research on Multinational Corporations (SOMO).
Doctor Felicity Gerry QC, Counsel on the list at the International Criminal Court and at the Bar of England and Wales and Victoria, Australia), “The current remedy is for Telenor Group to delay the sale until scrutiny can occur through state or judicial mechanisms. A major question is to which extent Telenor has engaged in any purchaser due diligence checks. Insofar as Telenor professes to take human rights protections seriously, it should not sell a holding without ensuring the safety of employees and customers to avoid complicity in that harm.”
Daye Gang (Counsel at the Victorian Bar in Australia): “Telenor’s demonstrated commitment to human rights may create a broad duty of care towards its customers. That would oblige Telenor to conduct due diligence in its decision-making, up to and including disengagement.”
Joseph Wilde-Ramsing (Senior Researcher at SOMO): “In our view, Telenor and its majority shareholder, the Norwegian government, have an obligation to protect their customers in Myanmar from harm, which includes persecution, torture, and even extrajudicial killings, by not handing over control of sensitive user data.”
The sale of Telenor’s activities in Myanmar is currently under investigation by the Norwegian Data Protection Authority (DPA) after a Myanmar citizen, backed by Norwegian law firm SANDS and SOMO, filed a complaint against Telenor in February, in a bid to block the dangerous transfer of control over sensitive user data.
Civil society organisations supporting the claim fear that user data of over 18 million Telenor customers will fall into the hands of the military junta, with grave consequences for the junta’s opponents. The complaint contends that the sale would breach the EU’s General Data Protection Regulation (GDPR), to which Norway adheres.
In July 2021, SOMO filed a complaint with the Norwegian National Contact Point for the OECD Guidelines on behalf of 474 Myanmar civil society organisations. It contends that Telenor’s proposed sale breaches the OECD Guidelines, because the company failed to adequately mitigate the severe human rights risks to its customers in the context of its disengagement from Myanmar. A dialogue is ongoing, but Telenor has refused to engage in meaningful mediation to address the severe impending impacts at this time.
In January 2022, a coalition of NGOs also wrote to the Norwegian Prime Minister on behalf of Myanmar civil society, appealing for intervention to stop the damaging sale.