Bahrain to Argue at British Supreme Court Over Sovereign Immunity in Spyware Claims

The Bahraini government is preparing to argue before the UK's supreme court that it possesses sovereign immunity from accusations that it deployed surveillance software on the devices of two dissidents during their residence in the UK capital.

Court Proceedings Background

Bahrain has previously lost its sovereign immunity claim in both high court and appellate court. Taking the case to the supreme court highlights the importance of this matter for the nation's international reputation.

Should Bahrain prevail, the ruling could have wider consequences for how authoritarian governments utilize digital spyware to monitor and potentially harass political dissidents residing in the United Kingdom.

Key Focus of Legal Proceedings

The supreme court hearing, scheduled to begin this Wednesday, will concentrate on whether the two men have the legal right to seek compensation despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher spyware to compromise their electronic devices while they were residing in London, causing emotional distress. The appellate court last autumn supported a high court ruling that the State Immunity Act 1978 does not provide Bahrain sovereign immunity against their allegations.

Section 5 of the act specifies that a state does not have protection from claims for personal injury resulting from an act or omission that occurred in the United Kingdom.

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

Technical Details

Legal representatives stated that "The surveillance program can gather large quantities of data from infected devices, including capturing all keyboard inputs, telephone conversations, messages, emails, scheduling information, instant messaging, address books, browsing history, photos, data collections, 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 located in the UK 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 been violated.

A foreign state does not have immunity for psychological harm caused by an act in the UK, even if some activities take place abroad. The judicial body also ruled that "personal injury" as defined in the state immunity act included standalone psychiatric injury.

Defense Position

The appellate decision stated that Bahrain denied the accusers' claims of compromising the dissidents' computers with spyware, but the initial court justice "found, on the basis of specialist testimony, that the claimants had discharged the responsibility upon them of demonstrating on the balance of probabilities that their devices were infected by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a 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 electronic device. It delivers a strong signal to overseas authorities who target their non-violent critics with multiple methods including violating their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the nation, stated: "This process has now arrived at the highest court in the country. I have a duty to reveal what I endured when I believe Bahrain compromised my device. The effect has been devastating – especially for those who placed their trust 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 diplomatic immunity to advance their cross-border persecution on British soil."

Both men have had their nationality revoked.

Attorney Commentary

A lead attorney commented: "This case raise essential issues about accountability for the use of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and many others we advocate for, have waited a long time for clarity on these issues."