Bahrain to Present Case at British Highest Court Over Sovereign Immunity in Spyware Claims

The Bahraini government is preparing to argue before the UK's supreme court that it possesses sovereign immunity from accusations that it installed surveillance software on the computers of two activists during their stay in the UK capital.

Court Proceedings Context

The Gulf country has been denied its immunity argument in the lower court and appellate court. Taking the case to the highest court highlights the importance of this issue for the nation's international reputation.

If Bahrain prevail, the ruling could have broader implications for how authoritarian states employ digital spyware to track and potentially harass political dissidents living in the United Kingdom.

Key Focus of Legal Proceedings

The legal proceedings, scheduled to begin this Wednesday, will concentrate on whether the two individuals have the standing to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.

Allegations and Proof

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, causing psychological harm. The appellate court last autumn upheld a previous court decision that the State Immunity Act 1978 does not provide Bahrain state protection against their claims.

Section 5 of the act specifies that a country does not have immunity from legal actions for personal injury resulting from an action or inaction that occurred in the UK.

The ruling will also offer guidance regarding other surveillance allegations being pursued by law firms on behalf of clients.

Software Capabilities

Attorneys claimed that "The surveillance program can gather vast amounts of information from infected devices, including capturing every keystroke, voice calls, messages, emails, calendar records, instant messaging, address books, browsing history, photos, data collections, files and videos. It enables recording of live audio from the equipment's audio input and camera."

Judicial Analysis

The appellate court found that remote manipulation, from abroad, of a computer located in the UK represented an act within the UK's jurisdiction. Even if the hacking occurred abroad, the effect was that the national jurisdiction of the United Kingdom had suffered interference.

A foreign state does not have protection for psychological harm caused by an action in the UK, although some acts occur overseas. The judicial body also determined that "personal injury" as defined in the state immunity act included independent psychological damage.

Defense Position

The appellate decision noted that Bahrain denied the accusers' claims of infecting the dissidents' computers with spyware, but the high court judge "determined, on the based on specialist testimony, that the claimants had discharged the responsibility upon them of proving on the balance of probabilities that their devices were compromised by spyware by Bahrain's servants or agents."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I'm satisfied with the outcome so far of the court case regarding the cyber intrusion of my computer. It delivers a clear message to foreign governments who target their peaceful political opponents with multiple methods including intruding into their private lives and devices."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, stated: "Our journey has now reached the highest court in the country. I have a responsibility to reveal what I experienced when I believe Bahrain hacked my device. The effect has been devastating – especially for those who had confidence in me, and for my friends and family."

"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to hide behind diplomatic immunity to pursue their transnational repression on British soil."

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

A lead attorney commented: "These proceedings raise fundamental questions about accountability for the deployment of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and numerous additional people we represent, have anticipated a considerable period for resolution on these issues."