Bahrain to Present Case at UK Highest Court Over State Immunity in Surveillance Claims

The Bahraini government is preparing to argue before the Britain's highest judicial body that it enjoys state immunity from allegations that it deployed spyware on the computers of two activists during their residence in the UK capital.

Court Proceedings Background

Bahrain has previously lost its immunity argument in both lower court and court of appeal. Bringing the case to the supreme court demonstrates the importance of this issue for the country's international reputation.

Should Bahrain prevail, the decision could have wider consequences for how authoritarian governments employ digital spyware to track and potentially harass political dissidents living in the UK.

Central Issue of Supreme Court Hearing

The supreme court hearing, starting this Wednesday, will focus on whether the two individuals have the legal right to claim compensation despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher spyware to infiltrate their computers while they were living in London, resulting in emotional distress. The appellate court last October supported a high court ruling that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their claims.

Article 5 of the act specifies that a country does not have immunity from claims for physical or psychological harm resulting from an action or inaction that occurred in the United Kingdom.

The decision will also offer guidance regarding other spyware claims being pursued by legal teams on behalf of affected individuals.

Software Capabilities

Legal representatives stated that "FinSpy software can collect vast amounts of data from infected devices, including capturing every keystroke, telephone conversations, text communications, electronic mail, scheduling information, real-time chats, address books, browsing history, images, data collections, documents and videos. It enables recording of live audio from the device's microphone and camera."

Judicial Analysis

The court of appeal determined that external control, overseas, of a computer located in the United Kingdom represented an act within the British territory. Although the cyber intrusion took place overseas, the consequence was that the national jurisdiction of the UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an action in the UK, although some activities occur abroad. The judicial body also ruled that "psychological harm" as defined in the immunity legislation included independent psychological damage.

Bahrain's Stance

The appellate decision noted that Bahrain denied the claimants' allegations of compromising the dissidents' computers with surveillance software, but the high court judge "determined, on the basis of specialist testimony, that the plaintiffs had discharged the burden upon them of demonstrating on the balance of probabilities that their devices were infected by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, welcomed with the legal proceedings, stating: "I am pleased with the outcome so far of the legal proceedings regarding the hacking of my computer. It delivers a strong signal to overseas authorities who target their peaceful political opponents with various means including violating their private lives and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the nation, commented: "This process has now reached the highest court in the land. I have a duty to expose what I endured when I am convinced Bahrain hacked my computer. The effect has been profound – especially for those who placed their trust in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use state protection to advance their cross-border persecution on UK territory."

Both men have had their Bahraini citizenship withdrawn.

Attorney Commentary

A senior legal representative commented: "This case raise fundamental questions about accountability for the deployment of intrusive surveillance technology against political activists and human rights defenders. Our represented individuals, and numerous additional people we advocate for, have anticipated a considerable period for resolution on these issues."