Bahrain to Present Case at British Highest Court Over Sovereign Immunity in Spyware Claims

The Bahraini government is preparing to claim before the Britain's highest judicial body that it possesses sovereign immunity from accusations that it installed surveillance software on the devices of two dissidents during their residence in London.

Court Proceedings Context

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

Should Bahrain prevail, the ruling could have broader implications for how authoritarian states utilize digital spyware to monitor and possibly target opposition figures living in the UK.

Key Focus of Legal Proceedings

The legal proceedings, starting this midweek, will focus on whether the two men have the standing to seek damages despite Bahrain's immunity claim, rather than addressing whether damages are applicable.

Allegations and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their computers while they were living in London, causing psychological harm. The appellate court last October supported a previous court decision that the State Immunity Act 1978 does not provide Bahrain sovereign immunity against their claims.

Article 5 of the act states that a country does not have protection from claims for personal injury caused by an action or inaction that occurred in the UK.

The ruling will also provide clarity regarding additional spyware claims being pursued by law firms on behalf of affected individuals.

Software Capabilities

Attorneys claimed that "FinSpy software can collect vast amounts of information from compromised equipment, including recording every keystroke, voice calls, messages, emails, scheduling information, instant messaging, address books, internet activity, photos, data collections, files and recordings. It allows capture of live audio from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that external control, overseas, of a computer situated in the United Kingdom constituted an act within the British territory. Even if the cyber intrusion occurred abroad, the effect 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 United Kingdom, even if some acts occur overseas. The court also determined that "personal injury" as defined in the state immunity act encompassed independent psychological damage.

Defense Position

The appeal court ruling stated that Bahrain denied the accusers' claims of compromising the activists' devices with surveillance software, but the initial court justice "determined, on the based on specialist testimony, that the claimants had discharged the responsibility upon them of demonstrating on the balance of probabilities that their devices were compromised by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a founder of the opposition group al-Wefaq, welcomed with the legal proceedings, saying: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a clear message to foreign governments who target their non-violent critics with multiple methods including intruding into their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after experiencing frequent detention within the country, commented: "This process has now arrived at the highest court in the country. I have a responsibility to reveal what I endured when I am convinced Bahrain hacked my computer. The impact has been profound – particularly for those who placed their trust in me, and for my loved ones."

"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their cross-border persecution on British soil."

Both men have had their Bahraini citizenship withdrawn.

Legal Perspective

A senior legal representative commented: "These proceedings present essential issues about responsibility for the deployment of intrusive surveillance technology against political activists and members of civil society. Our clients, and many others we represent, have waited a long time for clarity on these issues."