As Telenor Group pushes through the sale of their Myanmar subsidiary to a military-linked consortium, there is growing concern in Myanmar and Norway over the possibility that the junta will gain access to the personal data of the network’s 18 million Myanmar customers.
In an interview with Myanmar Now, Norwegian judge Hanne Sophie Greve warns that Telenor and Norwegian authorities could be liable for complicity in crimes against humanity, in a worse case scenario.
She said that Telenor should either sell to a responsible buyer, that is not related to the military in Myanmar, or close down their network if a responsible buyer cannot be found.
Since the coup, Telenor has complied with more than 200 data requests from the military junta, with each request consisting of multiple phone numbers.
Telenor told Myanmar Now, “Violating or not complying with directives issued under the existing legal framework, would have severe and completely unacceptable consequences for our employees.”
But Greve argues that it is the responsibility of the company’s leadership and owners, which includes the Norwegian government, to under no circumstances contribute to possible crimes against humanity in Myanmar.
Greve has worked extensively on international law. She has previously served, inter alia, as an Expert in the UN Commission of Experts for the Former Yugoslavia (the War Crimes Commission), as Judge at the European Court of Human Rights, and has also worked with Myanmar refugees in Thailand at the UN High Commissioner for Refugees.
What are your concerns related to Telenor Group’s sale of its Myanmar unit?
My main concern, of course, is the approximately 18 million customers and their data. I think that it may be feared that the behaviour of the junta in Myanmar today amounts to crimes against humanity. For this reason, I do believe that anyone who assists the military in Myanmar in getting access to data related to perhaps 18 million customers of Telenor may actually be aiding and abetting crimes against humanity.
What do you think Telenor should be doing differently?
In my opinion the first thing that should be done under the circumstances is to ensure that no one inside Myanmar has access to any information about the customers of Telenor in Myanmar. Thereby Telenor would ensure that no one can be pressured, nobody can be asked to release such information. That, in my opinion, is the very first step.
The second step should be to have the sale, well, I want it cancelled, but at least to be postponed, so that it could be very carefully considered, if this could be aiding and abetting crimes against humanity.
I think that it would be advisable for Telenor to ask the chief public prosecutor in Norway to give an opinion about the possible consequences of the sale. Telenor should await that opinion. I cannot imagine that the answer will be that releasing 18 million customers’ information cannot be aiding and abetting, if the military’s behaviour in Myanmar already, or tomorrow, amounts to crimes against humanity. So, I hope that eventually there will be no sale. Not this week, not by the 15th February and not in the future, either. But, at least, let us have it postponed. But, immediately, freeze all, absolutely all information about all the customers in Myanmar.
The Norwegian government’s line seems to be that, although Telenor is a majority state owned company, they don’t interfere in company affairs and that this is completely up to the board. Do you think it’s acceptable that the Norwegian government is taking a hands-off approach when the sale, as you state, could amount to aiding and abetting?
In my opinion, the government cannot wash its hands in this case. That is to say, the issue is far too serious. I certainly agree that in everyday matters, small matters, ordinary sales, it is not for the government to intervene. Then it’s for the board to decide. But, when it comes to potential crimes against humanity, this is no more the case, in my opinion. Not at all. For this reason, the last few days, pressure is mounting on the government, and on the minister who is dealing with company matters, to act in the case. I know that the Norwegian government in principle and in general is very, very concerned about the situation in Myanmar. That’s the approach by the government. It cannot be combined with staying hands off when it comes to a potential sale to people who might share the information with the junta in Myanmar.
If the sale goes ahead and is found to be aiding and abetting crimes against humanity, who could be accountable?
Well, first of all, God forbid they go ahead with the sale. But, if that very, very unfortunate situation would occur— Norway is bound by the Rome Statute of the International Criminal Court, which means that crimes against humanity, even if Myanmar is not a party to that Statute, could lead to a complaint against at least Telenor, or perhaps even, in a worst-case scenario, against Norwegian authorities for not having stopped the sale.
So in your opinion, could Norwegian authorities who have authority over the state’s majority shareholdings in Telenor Myanmar, also be complicit in crimes against humanity if they continues to take a hands off approach and the sale proceeds?
Worst case scenario, yes. The first question is whether crimes against humanity are committed by the junta in Myanmar today or in the near future. Presupposing that this is the case, which unfortunately, I think it may well be, then that might be the final result. They have got every chance to stop the sale. They have been warned. They are fully aware of the sensitivity of telecommunications data. Today I am a judge in Norway. The country has very strict rules. If the police or the prosecutor would like to have information about my telephone calls, they can get it in relation to criminal cases, if, and only if, a court agrees. So, Telenor is fully aware of the sensitivity of all the information they have. They know perfectly well that this is extremely sensitive. The company cannot give up its property rights, so to speak, to this information and not give up the company’s obligation to protect the information. They may perhaps sell to anyone, but without the information. In my opinion, financial issues can no more be invoked at this stage.
Under international criminal law, is there a risk that the current members of the Telenor Group board could be complicit in crimes against humanity if they proceed with the sale?
Yes, absolutely. Absolutely. The top administration and the board are the ones primarily responsible in this case. It’s for the board to prevent Telenor from aiding and abetting crimes against humanity.
According to Myanmar Now sources, the military-linked company Shwe Byain Phyu will own the majority of Telenor Myanmar following its sale to M1 Group. Telenor continues to say they will not comment on market speculation and they have refused to tell Myanmar Now the name of the legal entity they intend to sell to, and the jurisdiction. What is your view of these circumstances of the sale?
If I have a bomb in my hand, I don’t give it over to you and say, ‘I don’t care what happens.’ They cannot under the circumstances, see it as something that’s beyond their control. That’s to say, if the buyer is a very accountable and decent company that is known to behave very properly, and if that particular company in five years’ time would change entirely and behave very badly, that would not be the responsibility of Telenor. But, if Telenor sells to someone who has a reputation for not being accountable, or has links to the present military junta, that is a different issue. And that is the case as it stands. It is for Telenor to produce the evidence that the buyer is acceptable, that is that there can be no suspicion that the buyer will share the personal data of the network’s 18 million Myanmar customers with the military.
Telenor has been saying that the reason for selling is that they would not be consistent with their values if they stayed in Myanmar. So therefore, they need to leave. They have also claimed that if they continued operating in Myanmar, they would have to activate lawful interception, which could breach the EU sanctions. So they are implying that leaving Myanmar, by selling to M1 Group, is the best scenario for human rights. How would you respond to that?
That, in my opinion, is a false claim. The best option, if they can’t find a decent buyer, is to close down entirely. Not to sell at all. Close it down. That’s all. Telenor cannot say that human rights matter only as long as the company operates inside Myanmar. Human rights are equally important in connection with a sale. I have been debating it with Telenor on TV in Norway, and they’re saying just what you said, we have to leave because of human rights etc. I say I truly appreciate that you want to leave under the circumstances. But you have to ensure that human rights are not violated by the way you leave. That’s an absolute obligation under the guidelines for business and human rights made by the UN, and the OECD. Companies have an obligation to protect their customers throughout. The sale is part of it. They have to ensure human rights in the process of selling and they have to ensure that the buyer is not someone who will give the information to the junta in Myanmar.
Since the military coup on the first of February last year, Telenor has fulfilled at least 200 directives from the military junta to handover personal data of customers, with each directive exposing multiple phone numbers. Telenor’s response to this is that if they would have denied those requests, that would put their staff in danger, so they had no choice. How would you respond to that?
The responsibility in cases like this rests with the leadership. Given the situation inside Myanmar, the decision not to handover information has to be made from outside. It has to be ensured that no one working for Telenor inside Myanmar will be in a position to release any information given the circumstances. That is a responsibility for the leadership.
Now there are many people in Myanmar who are scared of what will happen if the proposed Telenor sale goes through. As a judge and also as a Norwegian citizen, what would be your message to them?
We will make every effort to see that there shall be no harm. I can promise nothing, but I shall save no effort to try to see to it. And I know that many, many people in Norway are deeply concerned at the moment.
