The Gulf nation to Present Case at British Supreme Court Over Sovereign Immunity in Spyware Allegations

The Bahraini government is preparing to argue before the Britain's highest judicial body that it possesses state immunity from accusations that it installed spyware on the computers of two activists during their stay in London.

Legal Battle Context

The Gulf country has previously lost its sovereign immunity claim in both lower court and appellate court. Bringing the matter to the supreme court demonstrates the importance of this matter for the nation's international reputation.

Should Bahrain succeed, the ruling could have wider consequences for how authoritarian states employ surveillance technology to track and possibly target opposition figures living in the United Kingdom.

Central Issue of Legal Proceedings

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

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher spyware to infiltrate their electronic devices while they were residing in London, resulting in psychological harm. The appellate court last autumn upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.

Section 5 of the act specifies that a state does not have immunity from legal actions for physical or psychological harm resulting from an action or inaction that occurred in the United Kingdom.

The decision will also provide clarity regarding other surveillance allegations being handled by legal teams on behalf of affected individuals.

Technical Details

Legal representatives stated that "The surveillance program can collect vast amounts of data from infected devices, including recording every keystroke, voice calls, text communications, emails, scheduling information, real-time chats, contacts lists, browsing history, images, data collections, documents and recordings. It allows capture of real-time sound from the equipment's audio input and camera."

Judicial Analysis

The appellate court found that external control, from abroad, of a computer situated in the UK represented an action within the British territory. Even if the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the UK had been violated.

A foreign state does not have protection for personal injury resulting from an action in the United Kingdom, although certain acts occur overseas. The court also determined that "personal injury" as interpreted in the immunity legislation included independent psychological damage.

Defense Position

The appeal court ruling noted that Bahrain rejected the accusers' claims of infecting 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 demonstrating on the balance of probabilities that their devices were compromised by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I'm satisfied with the outcome so far of the court case regarding the hacking of my computer. It delivers a strong signal to overseas authorities who pursue their non-violent critics with multiple methods including violating their private lives and equipment."

Mohammed, who fled Bahrain in 2006 after facing frequent detention within the country, stated: "This process has now reached the highest court in the country. I have a duty to expose what I endured when I am convinced Bahrain compromised my device. The impact has been devastating – especially for those who had confidence in me, and for my friends and family."

"Abusive foreign states like Bahrain must be held accountable for destroying our lives. They cannot be allowed to use state protection to advance their cross-border persecution on British soil."

Both men have had their nationality withdrawn.

Legal Perspective

A senior legal representative stated: "This case raise fundamental questions about responsibility for the use of invasive monitoring systems against civil society members and human rights defenders. Our represented individuals, and many others we advocate for, have waited a considerable period for clarity on these matters."