The Bahraini government is preparing to claim before the Britain's highest judicial body that it enjoys sovereign immunity from allegations that it installed spyware on the devices of two activists during their residence in the UK capital.
Court Proceedings Background
The Gulf country has previously lost its sovereign immunity claim in the lower court and appellate court. Taking the matter to the supreme court highlights the significance of this matter for the nation's global standing.
If Bahrain succeed, the decision could have wider consequences for how authoritarian states employ digital spyware to monitor and potentially harass political dissidents residing in the United Kingdom.
Central Issue of Legal Proceedings
The supreme court hearing, starting this midweek, will concentrate on whether the two men have the legal right to seek damages despite Bahrain's sovereign immunity argument, rather than addressing whether compensation is warranted.
Claims and Proof
Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used Germany-produced FinFisher spyware to compromise their electronic devices while they were residing in London, causing emotional distress. The appellate court last October upheld a high court ruling that the State Immunity Act 1978 does not provide Bahrain state protection against their claims.
Section 5 of the legislation specifies that a country does not have immunity from legal actions for personal injury caused by an act or omission that occurred in the UK.
The decision will also provide clarity regarding additional spyware claims being pursued by legal teams on behalf of clients.
Software Capabilities
Attorneys claimed that "The surveillance program can collect vast amounts of information from compromised equipment, including recording every keystroke, voice calls, text communications, electronic mail, calendar records, instant messaging, contacts lists, browsing history, photos, data collections, files and recordings. It allows capture of live audio from the equipment's audio input and camera."
Legal Interpretation
The court of appeal found that external control, from abroad, of a computer located in the UK constituted an act within the British territory. Although the hacking occurred abroad, the consequence was that the territorial sovereignty of the UK had been violated.
A overseas nation does not have immunity for personal injury caused by an action in the UK, although certain activities occur overseas. The judicial body also determined that "psychological harm" as defined in the immunity legislation encompassed independent psychological damage.
Bahrain's Stance
The appellate decision stated that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "determined, on the basis of specialist testimony, that the plaintiffs had discharged the responsibility 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 opposition group al-Wefaq, welcomed with the legal proceedings, stating: "I'm satisfied with the progress to date of the legal proceedings regarding the cyber intrusion of my computer. It sends a strong signal to foreign governments who target their non-violent critics with multiple methods including violating their personal affairs and devices."
Mohammed, who fled Bahrain in 2006 after experiencing repeated arrests within the country, commented: "This process has now arrived at the supreme judicial body in the land. I have a duty to reveal what I experienced when I am convinced Bahrain compromised my computer. The impact has been profound – particularly for those who had confidence in me, and for my loved ones."
"Repressive governments like Bahrain must be held accountable for wrecking our lives. They cannot be allowed to use diplomatic immunity to pursue their cross-border persecution on British soil."
Both men have had their Bahraini citizenship revoked.
Attorney Commentary
A lead attorney stated: "This case present 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 resolution on these issues."
