Bahrain is preparing to claim before the UK's supreme court that it possesses state immunity from accusations that it installed surveillance software on the computers of two dissidents during their stay in London.
Legal Battle Context
Bahrain has previously lost its sovereign immunity claim in both lower court and court of appeal. Taking the matter to the highest court highlights the importance of this issue for the nation's global standing.
If Bahrain succeed, the decision could have wider consequences for how authoritarian governments utilize digital spyware to track and potentially harass political dissidents residing in the United Kingdom.
Key Focus of Supreme Court Hearing
The supreme court hearing, scheduled to begin this Wednesday, will focus on whether the two men have the standing to seek damages despite Bahrain's immunity claim, rather than determining whether damages are applicable.
Allegations and Evidence
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to compromise their computers while they were living in London, resulting in psychological harm. The court of appeal last October supported a previous court decision that the State Immunity Act 1978 does not provide Bahrain state protection against their claims.
Section 5 of the act specifies that a state does not have protection from legal actions for physical or psychological harm resulting from an action or inaction that occurred in the United Kingdom.
The ruling will also offer guidance regarding additional surveillance allegations being pursued by legal teams on behalf of affected individuals.
Software Capabilities
Attorneys claimed that "The surveillance program can gather vast amounts of information from infected devices, including recording every keystroke, telephone conversations, text communications, electronic mail, calendar records, real-time chats, contacts lists, browsing history, images, databases, documents and recordings. It allows capture of live audio from the device's microphone and camera."
Judicial Analysis
The appellate court found that remote manipulation, from abroad, of a electronic device situated in the United Kingdom represented an act within the UK's jurisdiction. Although the cyber intrusion took place overseas, the consequence was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have immunity for psychological harm caused by an act in the UK, even if some activities occur overseas. The judicial body also ruled that "personal injury" as defined in the immunity legislation encompassed independent psychological damage.
Bahrain's Stance
The appeal court ruling noted that Bahrain rejected the accusers' claims of infecting the activists' devices with spyware, but the high court judge "determined, on the basis of expert evidence, that the claimants had discharged the responsibility upon them of proving on the balance of probabilities that their computers were infected by malicious software 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 progress to date of the legal proceedings regarding the hacking of my electronic device. It sends a clear message to foreign governments who target their non-violent critics with various means including violating their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the nation, stated: "This process has now arrived at the supreme judicial body in the land. I have a duty to reveal what I experienced when I am convinced Bahrain hacked my device. The effect has been profound – especially for those who placed their trust in me, and for my loved ones."
"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be allowed to hide behind state protection to advance their transnational repression on British soil."
The two individuals have had their Bahraini citizenship revoked.
Legal Perspective
A lead attorney stated: "This case raise fundamental questions about accountability for the use of intrusive surveillance technology against civil society members and human rights defenders. Our clients, and numerous additional people we represent, have waited a long time for clarity on these matters."
