Bahrain to Argue at British Highest Court Over Sovereign Immunity in Spyware Allegations

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

Legal Battle Context

Bahrain has previously lost its immunity argument in the lower court and court of appeal. Taking the case to the highest court highlights the significance of this issue for the nation's global standing.

Should Bahrain succeed, the decision could have wider implications for how authoritarian states utilize digital spyware to track and potentially harass political dissidents living in the United Kingdom.

Central Issue of Supreme Court Hearing

The supreme court hearing, starting this midweek, will focus on whether the two individuals have the standing to seek damages despite Bahrain's immunity claim, rather than addressing whether damages are applicable.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their computers while they were living in London, resulting in psychological harm. The court of appeal last autumn supported a high court ruling that the State Immunity Act 1978 does not provide Bahrain state protection against their allegations.

Section 5 of the act states that a state does not have protection from legal actions for personal injury caused by an action or inaction that took place in the United Kingdom.

The decision will also provide clarity regarding additional surveillance allegations being handled by legal teams on behalf of clients.

Software Capabilities

Legal representatives stated that "The surveillance program can gather large quantities of information from compromised equipment, including capturing every keystroke, voice calls, text communications, electronic mail, calendar records, instant messaging, contacts lists, browsing history, images, databases, documents and recordings. It allows recording of real-time sound from the equipment's audio input and visual recording device."

Judicial Analysis

The appellate court determined that external control, overseas, of a electronic device situated in the UK represented an action within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the UK had suffered interference.

A overseas nation does not have immunity for psychological harm resulting from an act in the UK, although some activities occur overseas. The court also ruled that "psychological harm" as interpreted in the state immunity act encompassed standalone psychiatric injury.

Bahrain's Stance

The appellate decision noted that Bahrain denied the accusers' claims of compromising the activists' devices with spyware, but the high court judge "found, on the basis of expert evidence, that the claimants had met the responsibility upon them of proving on the balance of probabilities that their devices were infected by spyware by Bahraini representatives."

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, welcomed 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 sends a clear message to foreign governments who target their peaceful political opponents with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the country, stated: "Our journey has now reached the supreme judicial body in the land. I have a responsibility to expose what I experienced when I believe Bahrain compromised my device. The impact 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 destroying our lives. They cannot be permitted to hide behind state protection to pursue their transnational repression on British soil."

The two individuals have had their nationality withdrawn.

Legal Perspective

A senior legal representative stated: "This case present essential issues about accountability for the deployment of intrusive surveillance technology against civil society members and members of civil society. Our represented individuals, and many others we represent, have anticipated a long time for resolution on these issues."