The Bahraini government is set to claim before the UK's supreme court that it enjoys sovereign immunity from allegations that it deployed spyware on the computers of two dissidents during their residence in London.
Court Proceedings Background
The Gulf country has previously lost its immunity argument in the lower court and court of appeal. Bringing the matter to the highest court highlights the significance of this issue for the country's global standing.
Should Bahrain succeed, the decision could have wider implications for how authoritarian states utilize digital spyware to monitor and potentially harass opposition figures residing in the UK.
Central Issue of Legal Proceedings
The supreme court hearing, scheduled to begin this Wednesday, will concentrate on whether the two men have the legal right to seek damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.
Claims and Evidence
Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher spyware to compromise their computers while they were living in London, resulting in psychological harm. The court of appeal last October upheld a previous court decision that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.
Section 5 of the act specifies that a state does not have immunity from legal actions for personal injury resulting from an act or omission that occurred in the UK.
The ruling will also provide clarity regarding additional spyware claims being pursued by law firms on behalf of clients.
Software Capabilities
Legal representatives claimed that "FinSpy software can collect vast amounts of information from infected devices, including capturing every keystroke, voice calls, text communications, emails, calendar records, instant messaging, contacts lists, internet activity, photos, databases, files and videos. It enables recording of live audio from the device's microphone and visual recording device."
Legal Interpretation
The appellate court determined that external control, from abroad, of a electronic device situated in the United Kingdom constituted an action within the British territory. Although the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the UK had suffered interference.
A foreign state does not have immunity for psychological harm caused by an action in the United Kingdom, even if certain acts occur abroad. The court also determined that "psychological harm" as interpreted in the immunity legislation included standalone psychiatric injury.
Bahrain's Stance
The appeal court ruling stated that Bahrain denied the accusers' claims of compromising the dissidents' computers with surveillance software, but the high court judge "determined, on the based on specialist testimony, that the claimants had discharged the burden 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 founder of the dissident party al-Wefaq, welcomed with the legal proceedings, saying: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a clear message to foreign governments who pursue their peaceful political opponents with multiple methods including violating their private lives and devices."
Mohammed, who fled Bahrain in 2006 after facing frequent detention within the country, commented: "Our journey has now reached the highest court in the land. I have a duty to reveal what I endured when I believe Bahrain compromised my computer. The impact has been devastating – especially for those who had confidence in me, and for my friends and family."
"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to use state protection to pursue their transnational repression on UK territory."
Both men have had their nationality withdrawn.
Legal Perspective
A senior legal representative commented: "These proceedings present essential issues about responsibility for the deployment of invasive monitoring systems against political activists and members of civil society. Our represented individuals, and numerous additional people we represent, have waited a long time for clarity on these matters."
