Bahrain is set to argue before the Britain's highest judicial body that it enjoys sovereign immunity from allegations that it deployed surveillance software on the devices of two activists during their residence in the UK capital.
Court Proceedings Context
Bahrain has previously lost its immunity argument in the lower court and appellate court. Taking the matter to the highest court highlights the importance of this matter for the nation's global standing.
If Bahrain succeed, the ruling could have broader consequences for how authoritarian governments utilize digital spyware to monitor and potentially harass political dissidents living in the UK.
Key Focus of Supreme Court Hearing
The supreme court hearing, scheduled to begin this Wednesday, will focus on whether the two individuals have the standing to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.
Claims and Evidence
Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their electronic devices while they were residing in London, resulting in psychological harm. The court of appeal last October supported a high court ruling that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.
Section 5 of the act specifies that a country does not have immunity from legal actions for personal injury caused by an action or inaction that occurred in the UK.
The decision will also provide clarity regarding additional spyware claims being pursued by legal teams on behalf of clients.
Technical Details
Legal representatives stated that "FinSpy software can gather vast amounts of data from compromised equipment, including capturing all keyboard inputs, telephone conversations, messages, emails, calendar records, instant messaging, contacts lists, browsing history, photos, data collections, files and recordings. It enables recording of live audio from the device's microphone and camera."
Judicial Analysis
The court of appeal determined that external control, overseas, of a computer situated in the United Kingdom constituted an act within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the United Kingdom had suffered interference.
A overseas nation does not have protection for psychological harm resulting from an act in the United Kingdom, even if certain activities take place abroad. The court also ruled that "psychological harm" as defined in the state immunity act included independent psychological damage.
Bahrain's Stance
The appeal court ruling stated that Bahrain denied the accusers' claims of infecting the dissidents' computers with spyware, but the initial court justice "determined, on the basis of specialist testimony, that the plaintiffs had discharged the burden upon them of demonstrating on the preponderance of evidence that their computers were compromised by malicious software by Bahrain's servants or agents."
Claimants' Comments
Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I am pleased with the progress to date of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a clear message to foreign governments who target their peaceful political opponents with various means including violating their private lives and equipment."
Mohammed, who fled Bahrain in 2006 after facing frequent detention within the nation, commented: "This process has now reached the supreme judicial body in the land. I have a responsibility to reveal what I experienced when I am convinced Bahrain compromised my computer. The impact has been devastating – especially 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 permitted to hide behind diplomatic immunity to advance their transnational repression on British soil."
The two individuals have had their Bahraini citizenship withdrawn.
Attorney Commentary
A lead attorney stated: "These proceedings present essential issues about accountability for the use of invasive monitoring systems against civil society members and human rights defenders. Our clients, and numerous additional people we advocate for, have waited a long time for clarity on these matters."
