Bahrain is set to argue before the UK's supreme court that it possesses sovereign immunity from accusations that it deployed spyware on the devices of two dissidents during their residence in the UK capital.
Legal Battle Background
Bahrain has been denied its sovereign immunity claim in both high court and court of appeal. Taking the matter to the highest court highlights the importance of this matter for the country's international reputation.
Should Bahrain succeed, the ruling could have wider consequences for how authoritarian governments employ surveillance technology to monitor and possibly target opposition figures residing in the UK.
Central Issue of Legal Proceedings
The supreme court hearing, starting this Wednesday, will focus on whether the two men have the standing to seek compensation despite Bahrain's sovereign immunity argument, rather than addressing whether compensation is warranted.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, resulting in psychological harm. The appellate court last October upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their claims.
Article 5 of the legislation specifies that a country does not have immunity from legal actions for physical or psychological harm resulting from an action or inaction that took place in the UK.
The decision will also offer guidance regarding other spyware claims being pursued by legal teams on behalf of affected individuals.
Technical Details
Attorneys claimed that "FinSpy software can collect vast amounts of data from infected devices, including recording every keystroke, telephone conversations, messages, emails, calendar records, real-time chats, contacts lists, browsing history, images, databases, files and videos. It enables recording of real-time sound from the device's microphone and visual recording device."
Judicial Analysis
The court of appeal determined that remote manipulation, from abroad, of a electronic device situated in the UK constituted an act within the British territory. Although the hacking took place overseas, the consequence was that the national jurisdiction of the UK had suffered interference.
A overseas nation does not have protection for personal injury caused by an action in the United Kingdom, even if some acts take place overseas. The judicial body also ruled that "psychological harm" as interpreted in the immunity legislation included standalone psychiatric injury.
Bahrain's Stance
The appeal court ruling noted that Bahrain denied the claimants' allegations of infecting the activists' devices with spyware, but the initial court justice "found, on the basis of expert evidence, that the claimants had discharged the responsibility 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, welcomed with the legal proceedings, stating: "I'm satisfied with the progress to date of the court case regarding the cyber intrusion of my electronic device. It sends a strong signal to foreign governments who pursue their non-violent critics with multiple methods including intruding into their personal affairs and equipment."
Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the country, stated: "This process has now reached the highest court in the country. I have a duty to reveal what I experienced when I am convinced Bahrain hacked my computer. The impact has been profound – particularly for those who had confidence in me, and for my friends and family."
"Repressive governments like Bahrain must be brought to justice 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 nationality revoked.
Attorney Commentary
A senior legal representative stated: "These proceedings raise fundamental questions about accountability for the deployment of invasive monitoring systems against civil society members and members of civil society. Our clients, and many others we advocate for, have waited a long time for clarity on these issues."
