Bahrain to Argue at UK Highest Court Over State Immunity in Spyware Allegations

Bahrain is set to claim before the Britain's highest judicial body that it enjoys state immunity from allegations that it installed surveillance software on the devices of two activists during their residence in London.

Court Proceedings Background

The Gulf country has previously lost its immunity argument in the high court and court of appeal. Taking the matter to the supreme court highlights the importance of this matter for the country's global standing.

Should Bahrain succeed, the decision could have broader implications for how authoritarian governments utilize digital spyware to track and potentially harass opposition figures residing in the United Kingdom.

Central Issue of Legal Proceedings

The legal proceedings, scheduled to begin this midweek, will concentrate on whether the two men have the standing to seek compensation despite Bahrain's immunity claim, rather than determining whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher spyware to infiltrate their computers while they were residing in London, resulting in emotional distress. The appellate court last October upheld a high court ruling that the State Immunity Act 1978 does not grant Bahrain state protection against their claims.

Section 5 of the act states that a country does not have protection from legal actions for physical or psychological harm resulting from an action or inaction that took place in the United Kingdom.

The ruling will also offer guidance regarding additional surveillance allegations being pursued by law firms on behalf of clients.

Technical Details

Legal representatives claimed that "FinSpy software can collect vast amounts of data from infected devices, including capturing every keystroke, telephone conversations, messages, emails, calendar records, instant messaging, contacts lists, browsing history, photos, data collections, documents and videos. It enables recording of live audio from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that external control, overseas, of a computer located in the UK constituted an action within the British territory. Even if the hacking occurred abroad, the consequence was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have immunity for personal injury resulting from an action in the United Kingdom, even if some activities take place abroad. The court also determined that "personal injury" as defined in the state immunity act encompassed standalone psychiatric injury.

Defense Position

The appeal court ruling stated that Bahrain rejected the claimants' allegations of compromising the activists' devices with spyware, but the initial court justice "determined, on the basis of specialist testimony, that the plaintiffs had met the burden upon them of demonstrating 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 opposition group al-Wefaq, welcomed with the legal proceedings, saying: "I'm satisfied with the progress to date of the legal proceedings regarding the cyber intrusion of my computer. It sends a clear message to overseas authorities who target their non-violent critics with various means including intruding into their private lives and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the country, commented: "This process has now arrived at the highest court in the country. I have a responsibility to reveal what I endured when I believe Bahrain compromised my device. The effect has been profound – particularly for those who had confidence in me, and for my loved ones."

"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use state protection to pursue their transnational repression on British soil."

The two individuals have had their nationality revoked.

Legal Perspective

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