The Gulf nation to Present Case at UK Supreme Court Over State Immunity in Surveillance Claims

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

Court Proceedings Background

Bahrain has been denied its sovereign immunity claim in the lower court and appellate court. Bringing the case to the supreme court demonstrates the importance of this issue for the country's global standing.

Should Bahrain prevail, the decision could have wider implications for how authoritarian governments employ digital spyware to monitor and potentially harass opposition figures living in the UK.

Central Issue of Supreme Court Hearing

The legal proceedings, starting this midweek, will focus on whether the two men have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing emotional distress. The appellate court last October upheld a high court ruling that the 1978 immunity legislation does not provide Bahrain state protection against their claims.

Section 5 of the legislation states that a state does not have protection from claims for physical or psychological harm resulting from an action or inaction that took place in the UK.

The decision will also provide clarity regarding other surveillance allegations being pursued by legal teams on behalf of affected individuals.

Software Capabilities

Legal representatives stated that "FinSpy software can gather vast amounts of data from compromised equipment, including recording every keystroke, voice calls, text communications, emails, scheduling information, instant messaging, contacts lists, browsing history, images, databases, documents and recordings. It allows recording of real-time sound from the device's microphone and camera."

Judicial Analysis

The court of appeal determined that external control, overseas, of a electronic device located in the United Kingdom represented an act within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the United Kingdom had suffered interference.

A overseas nation does not have immunity for personal injury resulting from an act in the UK, even if certain acts occur overseas. The court also determined that "psychological harm" as interpreted in the state immunity act encompassed standalone psychiatric injury.

Defense Position

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

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I am pleased with the outcome so far of the legal proceedings regarding the hacking of my computer. It sends a clear message to overseas authorities who target their non-violent critics with various means including violating their private lives and equipment."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the nation, commented: "This process has now reached the highest court in the country. I have a duty to reveal what I endured when I believe Bahrain hacked my computer. The effect has been profound – especially for those who had confidence in me, and for my friends and family."

"Repressive governments like Bahrain must be held accountable for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their cross-border persecution on UK territory."

The two individuals have had their Bahraini citizenship revoked.

Attorney Commentary

A lead attorney commented: "This case raise fundamental questions about accountability for the use of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and many others we advocate for, have waited a long time for clarity on these matters."