The Bahraini government is preparing to argue before the UK's supreme court that it possesses sovereign immunity from allegations that it installed surveillance software on the devices of two dissidents during their stay in London.
Court Proceedings Context
Bahrain has been denied its sovereign immunity claim in both lower court and court of appeal. Taking the matter to the highest court highlights the significance of this matter for the country's international reputation.
If Bahrain succeed, the decision could have wider implications for how authoritarian states employ digital spyware to monitor and potentially harass political dissidents living in the United Kingdom.
Central Issue of Legal Proceedings
The legal proceedings, scheduled to begin this Wednesday, will focus on whether the two individuals have the standing to seek damages despite Bahrain's immunity claim, rather than determining whether damages are applicable.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used Germany-produced FinFisher surveillance software to compromise their electronic devices while they were residing in London, causing emotional distress. The appellate court last autumn upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.
Section 5 of the legislation states that a state does not have protection from legal actions for personal injury caused by an action or inaction that occurred in the United Kingdom.
The decision will also provide clarity regarding other surveillance allegations being pursued by law firms on behalf of affected individuals.
Technical Details
Legal representatives claimed that "The surveillance program can gather vast amounts of information from infected devices, including capturing all keyboard inputs, telephone conversations, text communications, electronic mail, calendar records, instant messaging, contacts lists, browsing history, photos, data collections, files and videos. It enables recording of live audio from the device's microphone and camera."
Judicial Analysis
The court of appeal determined that remote manipulation, from abroad, of a electronic device situated in the United Kingdom constituted an act within the UK's jurisdiction. Although the hacking took place overseas, the consequence was that the national jurisdiction of the UK had been violated.
A foreign state does not have protection for personal injury caused by an action in the UK, even if some acts take place abroad. The judicial body also determined that "personal injury" as interpreted in the immunity legislation included standalone psychiatric injury.
Bahrain's Stance
The appeal court ruling stated that Bahrain rejected the accusers' claims of compromising the activists' devices with spyware, but the high court judge "determined, on the basis of specialist testimony, that the claimants had discharged the burden upon them of proving on the preponderance of evidence that their computers were compromised by malicious software by Bahraini representatives."
Plaintiffs' Statements
Shehabi, a co-founder of the dissident party al-Wefaq, welcomed with the legal proceedings, saying: "I'm satisfied with the outcome so far of the court case regarding the cyber intrusion of my computer. 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 fled Bahrain in 2006 after facing repeated arrests within the nation, stated: "This process has now reached the supreme judicial body in the land. I have a responsibility to reveal what I endured when I am convinced Bahrain compromised my computer. The impact has been devastating – especially for those who placed their trust in me, and for my friends and family."
"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use state protection to pursue their cross-border persecution on British soil."
The two individuals have had their Bahraini citizenship revoked.
Attorney Commentary
A lead attorney commented: "This case present fundamental questions about accountability for the use of intrusive surveillance technology against political activists and human rights defenders. Our represented individuals, and numerous additional people we advocate for, have anticipated a considerable period for resolution on these matters."
