The Gulf nation to Argue at British Highest Court Over Sovereign Immunity in Spyware Allegations

Bahrain is preparing to claim before the UK's supreme court that it possesses state immunity from allegations that it deployed spyware on the computers of two activists during their stay in London.

Legal Battle Background

The Gulf country has been denied its immunity argument in both lower court and court of appeal. Bringing the case to the highest court demonstrates the importance of this issue for the nation's global standing.

If Bahrain prevail, the decision could have broader implications for how authoritarian governments utilize digital spyware to monitor and possibly target political dissidents residing in the UK.

Central Issue of Legal Proceedings

The legal proceedings, starting this midweek, will focus on whether the two individuals have the legal right to claim damages despite Bahrain's immunity claim, rather than addressing whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing psychological harm. The court of appeal last October supported a high court ruling that the State Immunity Act 1978 does not provide Bahrain sovereign immunity against their allegations.

Article 5 of the act states that a state does not have immunity from claims for personal injury caused by an act or omission that occurred in the UK.

The decision will also provide clarity regarding additional surveillance allegations being pursued by law firms on behalf of clients.

Technical Details

Legal representatives claimed that "The surveillance program can gather large quantities of data from compromised equipment, including recording every keystroke, voice calls, messages, electronic mail, scheduling information, real-time chats, address books, browsing history, images, data collections, documents and videos. It allows recording of live audio from the device's microphone and visual recording device."

Legal Interpretation

The court of appeal determined that external control, overseas, of a electronic device situated in the United Kingdom constituted an act within the British territory. Although the cyber intrusion occurred abroad, the effect was that the national jurisdiction of the United Kingdom had been violated.

A foreign state does not have protection for psychological harm caused by an act in the UK, although certain activities take place abroad. The court also determined that "psychological harm" as defined in the state immunity act encompassed standalone psychiatric injury.

Defense Position

The appellate decision noted that Bahrain denied the claimants' allegations of compromising the activists' devices with surveillance software, but the initial court justice "determined, on the basis of expert evidence, that the plaintiffs had met the burden upon them of proving on the balance of probabilities that their devices were infected by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my electronic device. It delivers a clear message to overseas authorities who target their non-violent critics with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the nation, commented: "Our journey has now reached the supreme judicial body in the land. I have a duty to reveal what I experienced when I believe Bahrain compromised my device. 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 held accountable for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their cross-border persecution on British soil."

The two individuals have had their Bahraini citizenship revoked.

Legal Perspective

A lead attorney stated: "These proceedings present essential issues about accountability for the use of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and numerous additional people we advocate for, have waited a considerable period for resolution on these issues."