The Bahraini government is preparing to argue before the Britain's highest judicial body that it possesses sovereign immunity from accusations that it deployed surveillance software on the devices of two activists during their residence in the UK capital.
Bahrain has been denied its sovereign immunity claim in both lower court and appellate court. Bringing the matter to the highest court demonstrates the significance of this issue for the nation's international reputation.
If Bahrain succeed, the decision could have broader consequences for how authoritarian states employ digital spyware to monitor and potentially harass political dissidents residing in the UK.
The legal proceedings, scheduled to begin this Wednesday, will concentrate on whether the two individuals have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to infiltrate their computers while they were living in London, resulting in psychological harm. The appellate court last autumn supported a high court ruling that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.
Article 5 of the legislation specifies that a state does not have immunity from claims 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 handled by legal teams on behalf of clients.
Attorneys claimed that "FinSpy software can collect vast amounts of data from infected devices, including recording every keystroke, telephone conversations, text communications, electronic mail, calendar records, instant messaging, address books, browsing history, images, data collections, documents and videos. It enables capture of real-time sound from the device's microphone and visual recording device."
The appellate court found that remote manipulation, overseas, of a electronic device situated in the United Kingdom constituted an action within the British territory. Even if the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the UK had been violated.
A overseas nation does not have immunity for psychological harm caused by an action in the United Kingdom, although certain activities take place overseas. The judicial body also ruled that "psychological harm" as defined in the state immunity act included independent psychological damage.
The appeal court ruling noted that Bahrain denied the accusers' claims of compromising the dissidents' computers with spyware, but the initial court justice "found, on the based on specialist testimony, that the plaintiffs had met the burden upon them of proving on the balance of probabilities that their computers were infected by spyware by Bahrain's servants or agents."
Shehabi, a founder of the opposition group al-Wefaq, welcomed with the supreme court hearing, stating: "I am pleased 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 target their non-violent critics with multiple methods including intruding into their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the country, commented: "This process has now reached the supreme judicial body in the land. I have a responsibility to reveal what I endured when I believe Bahrain hacked my computer. The impact has been devastating – especially for those who placed their trust in me, and for my loved ones."
"Repressive governments like Bahrain must be held accountable for destroying our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their cross-border persecution on British soil."
The two individuals have had their nationality revoked.
A senior legal representative commented: "This case raise essential issues about accountability for the deployment of invasive monitoring systems against civil society members and human rights defenders. Our clients, and many others we represent, have anticipated a long time for clarity on these issues."
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