The Bahraini government is preparing to argue before the UK's supreme court that it possesses 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 both high court and appellate court. Bringing the case to the highest court highlights the significance of this issue for the nation's international reputation.
Should Bahrain prevail, the decision could have wider consequences for how authoritarian governments utilize surveillance technology to monitor and possibly target political dissidents living in the UK.
Key Focus of Legal Proceedings
The legal proceedings, scheduled to begin this midweek, will concentrate on whether the two individuals have the legal right to seek damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their computers while they were residing in London, causing emotional distress. The court of appeal last autumn upheld a high court ruling that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.
Article 5 of the legislation specifies that a state does not have protection from claims for personal injury caused by an act or omission that took place in the UK.
The ruling will also provide clarity regarding other spyware claims being handled by legal teams on behalf of clients.
Technical Details
Attorneys claimed that "FinSpy software can gather large quantities of data from compromised equipment, including recording every keystroke, voice calls, messages, electronic mail, scheduling information, real-time chats, address books, browsing history, photos, databases, files and recordings. It enables capture of live audio from the device's microphone and visual recording device."
Legal Interpretation
The court of appeal found that external control, from abroad, of a electronic device situated in the UK represented an action within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have immunity for psychological harm resulting from an act in the UK, although certain acts take place overseas. The court also determined that "personal injury" as defined in the immunity legislation included independent psychological damage.
Defense Position
The appeal court ruling stated that Bahrain denied the claimants' allegations of infecting the activists' devices with spyware, but the initial court justice "found, on the basis of specialist testimony, that the plaintiffs had discharged the burden upon them of proving 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 legal proceedings, stating: "I'm satisfied with the progress to date of the court case regarding the hacking of my computer. It delivers a clear message to overseas authorities who target their non-violent critics with multiple methods including intruding into their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after experiencing repeated arrests within the country, stated: "This process has now arrived at the highest court in the land. I have a responsibility to expose what I experienced when I am convinced Bahrain compromised my computer. The effect has been devastating – 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 use diplomatic immunity to pursue their transnational repression on British soil."
Both men have had their Bahraini citizenship withdrawn.
Attorney Commentary
A lead attorney commented: "This case raise essential issues about responsibility for the deployment of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and numerous additional people we advocate for, have anticipated a considerable period for clarity on these matters."
