The Bahraini government is preparing to claim before the Britain's highest judicial body that it possesses state immunity from allegations that it installed spyware on the computers of two dissidents during their stay in the UK capital.
Legal Battle Context
The Gulf country has previously lost its immunity argument in both lower court and appellate court. Bringing the matter to the highest court demonstrates the importance of this matter for the country's international reputation.
Should Bahrain succeed, the decision could have broader implications for how authoritarian states employ surveillance technology to monitor and possibly target opposition figures residing in the United Kingdom.
Central Issue of Legal Proceedings
The supreme court hearing, starting this Wednesday, will concentrate on whether the two individuals have the standing to seek damages despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher spyware to infiltrate their electronic devices while they were living in London, causing psychological harm. The court of appeal last October upheld a high court ruling that the State Immunity Act 1978 does not provide Bahrain sovereign immunity against their claims.
Article 5 of the legislation states that a state does not have immunity from claims for physical or psychological harm resulting from an act or omission that occurred in the UK.
The ruling will also provide clarity regarding other spyware claims being handled by legal teams on behalf of clients.
Technical Details
Legal representatives stated that "The surveillance program can collect vast amounts of data from infected devices, including recording all keyboard inputs, voice calls, text communications, emails, calendar records, instant messaging, address books, browsing history, images, data collections, documents and recordings. It enables capture of real-time sound from the equipment's audio input and camera."
Legal Interpretation
The appellate court determined that external control, from abroad, of a electronic device located in the United Kingdom represented an act within the British territory. Even if the hacking occurred abroad, the consequence was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have protection for psychological harm resulting from an act in the United Kingdom, even if some acts take place abroad. The judicial body also ruled that "psychological harm" as defined in the immunity legislation included independent psychological damage.
Bahrain's Stance
The appellate decision stated that Bahrain rejected the claimants' allegations of infecting the activists' devices with spyware, but the high court judge "determined, on the based on expert evidence, that the plaintiffs had discharged the burden upon them of proving on the preponderance of evidence that their computers were compromised by spyware by Bahraini representatives."
Plaintiffs' Statements
Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I'm satisfied with the outcome so far of the court case regarding the hacking of my electronic device. It sends a clear message to overseas authorities who pursue their peaceful political opponents with multiple methods including violating their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the country, stated: "This process has now arrived at the supreme judicial body in the country. I have a duty to expose what I experienced when I believe Bahrain hacked my computer. The impact has been profound – particularly for those who placed their trust in me, and for my loved ones."
"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to hide behind diplomatic immunity to pursue their cross-border persecution on UK territory."
Both men have had their nationality withdrawn.
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 members of civil society. Our clients, and numerous additional people we represent, have waited a considerable period for resolution on these matters."
