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Bahrain is preparing to argue before the UK's supreme court that it possesses state immunity from allegations that it installed surveillance software on the devices of two dissidents during their residence in London.

Legal Battle Background

The Gulf country has been denied its sovereign immunity claim in the lower court and appellate court. Bringing the case to the highest court demonstrates the importance of this matter for the nation's global standing.

Should Bahrain succeed, the decision could have wider consequences for how authoritarian states employ surveillance technology to monitor and potentially harass political dissidents residing in the United Kingdom.

Key Focus of Supreme Court Hearing

The supreme court hearing, starting this midweek, will focus on whether the two men have the standing to seek damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, resulting in psychological harm. The court of appeal last autumn upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their claims.

Section 5 of the act states that a state does not have immunity from legal actions for physical or psychological harm caused by an act or omission that took place in the United Kingdom.

The decision will also provide clarity regarding other spyware claims being handled by law firms on behalf of affected individuals.

Technical Details

Legal representatives stated that "FinSpy software can collect large quantities of information from compromised equipment, including recording every keystroke, telephone conversations, text communications, electronic mail, scheduling information, instant messaging, address books, browsing history, photos, databases, documents and videos. It enables recording of real-time sound from the equipment's audio input and visual recording device."

Legal Interpretation

The court of appeal determined that external control, overseas, of a computer located in the United Kingdom constituted an act within the British territory. Although the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have protection for personal injury caused by an act in the UK, although certain activities take place abroad. The court also ruled that "personal injury" as defined in the immunity legislation included standalone psychiatric injury.

Defense Position

The appellate decision stated that Bahrain rejected the accusers' claims of infecting the activists' devices with surveillance software, but the high court judge "found, on the basis of specialist testimony, that the claimants had discharged the burden upon them of demonstrating on the balance of probabilities that their devices were compromised 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, saying: "I'm satisfied with the progress to date of the court case regarding the cyber intrusion of my electronic device. It delivers a clear message to foreign governments who target their non-violent critics with various means including intruding into their personal affairs and devices."

Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the nation, stated: "Our journey has now reached the supreme judicial body in the country. I have a responsibility to expose what I endured when I am convinced Bahrain hacked my device. The impact has been devastating – especially for those who had confidence in me, and for my friends and family."

"Abusive foreign states like Bahrain must be held accountable for destroying our lives. They cannot be allowed to hide behind diplomatic immunity to advance their cross-border persecution on UK territory."

Both men have had their nationality revoked.

Attorney Commentary

A lead attorney commented: "This case raise essential issues about responsibility for the deployment of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and many others we represent, have anticipated a considerable period for clarity on these issues."