Bahrain to Present Case at British Supreme Court Over State Immunity in Spyware Allegations

Bahrain is set to claim before the Britain's highest judicial body that it possesses state immunity from allegations that it deployed spyware on the devices of two activists during their residence in the UK capital.

Court Proceedings Background

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

Should Bahrain succeed, the ruling could have wider implications for how authoritarian governments employ digital spyware to monitor and possibly target opposition figures residing in the United Kingdom.

Central Issue of Supreme Court Hearing

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

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced 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 state protection against their allegations.

Article 5 of the legislation specifies that a state does not have immunity from claims for physical or psychological harm resulting from an act or omission that occurred in the UK.

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

Software Capabilities

Attorneys stated that "The surveillance program can collect vast amounts of data from compromised equipment, including capturing all keyboard inputs, telephone conversations, text communications, emails, calendar records, instant messaging, contacts lists, browsing history, images, databases, files and recordings. It allows recording of real-time sound from the equipment's audio input and visual recording device."

Legal Interpretation

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

A overseas nation does not have protection for psychological harm resulting from an act in the United Kingdom, even if some acts occur overseas. The court also ruled that "psychological harm" as interpreted in the state immunity act included standalone psychiatric injury.

Defense Position

The appellate decision noted that Bahrain denied the accusers' claims of infecting the activists' devices with spyware, but the high court judge "determined, on the basis of expert evidence, that the plaintiffs had met the burden upon them of proving on the preponderance of evidence that their devices were compromised by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my computer. It sends a strong signal to overseas authorities who pursue their peaceful political opponents with multiple methods including violating their personal affairs and equipment."

Mohammed, who fled Bahrain in 2006 after facing frequent detention within the nation, stated: "This process has now reached the supreme judicial body in the country. I have a responsibility to reveal what I experienced when I am convinced Bahrain hacked my computer. The impact has been profound – especially for those who placed their trust in me, and for my loved ones."

"Repressive governments 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 revoked.

Attorney Commentary

A lead attorney commented: "This case raise fundamental questions about responsibility for the use of intrusive surveillance technology against civil society members and human rights defenders. Our represented individuals, and numerous additional people we advocate for, have waited a considerable period for clarity on these issues."