🔗 Share this article

The Bahraini government is preparing to argue before the UK's supreme court that it enjoys sovereign immunity from accusations that it deployed spyware on the computers of two activists during their stay in London.

Court Proceedings Background

The Gulf country has been denied its sovereign immunity claim in both lower court and appellate court. Bringing the case to the highest court demonstrates the importance of this matter for the country's international reputation.

Should Bahrain succeed, the ruling could have wider consequences for how authoritarian governments employ digital spyware to monitor and potentially harass opposition figures residing in the UK.

Central Issue of Legal Proceedings

The legal proceedings, scheduled to begin this midweek, will focus on whether the two individuals 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 Bahrain authorities used German-made FinFisher surveillance software to compromise their computers while they were living in London, causing emotional distress. The appellate court last autumn supported a high court ruling that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.

Section 5 of the legislation states that a country does not have immunity from claims for personal injury resulting from an act or omission that occurred in the UK.

The decision will also provide clarity regarding additional surveillance allegations being pursued by law firms on behalf of clients.

Software Capabilities

Attorneys claimed that "The surveillance program can gather large quantities of data from compromised equipment, including capturing all keyboard inputs, telephone conversations, text communications, electronic mail, calendar records, real-time chats, address books, browsing history, images, databases, documents and videos. It enables recording of real-time sound from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that external control, from abroad, of a electronic device situated in the United Kingdom represented an act within the British territory. Even if the cyber intrusion took place overseas, the consequence was that the national jurisdiction of the UK had been violated.

A foreign state does not have immunity for psychological harm caused by an action in the United Kingdom, although some activities occur overseas. The court also ruled that "psychological harm" as defined in the immunity legislation encompassed standalone psychiatric injury.

Defense Position

The appellate decision noted that Bahrain denied the claimants' allegations of compromising the activists' devices with surveillance software, but the initial court justice "determined, on the basis of expert evidence, that the claimants had discharged the responsibility upon them of demonstrating on the preponderance of evidence that their devices were infected by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I am pleased with the outcome so far of the legal proceedings regarding the hacking of my computer. It sends a strong signal to overseas authorities who target their peaceful political opponents with various means including intruding into their personal affairs and equipment."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, commented: "Our journey has now arrived at the supreme judicial body in the land. I have a duty to expose what I experienced when I believe Bahrain hacked 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 permitted to hide behind diplomatic immunity to advance their cross-border persecution on UK territory."

The two individuals have had their Bahraini citizenship revoked.

Attorney Commentary

A lead attorney stated: "This case raise essential issues about accountability for the deployment of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and many others we represent, have waited a considerable period for resolution on these issues."