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Bahrain is set to claim before the UK's supreme court that it enjoys state immunity from allegations that it deployed surveillance software on the computers of two activists during their residence in London.

Court Proceedings Context

Bahrain has been denied its immunity argument in the lower court and court of appeal. Bringing the matter to the supreme court demonstrates the importance of this matter for the country's global standing.

If Bahrain succeed, the ruling could have broader implications for how authoritarian governments utilize digital spyware to track and possibly target opposition figures residing in the UK.

Central Issue of Supreme Court Hearing

The supreme court hearing, scheduled to begin this midweek, 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.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their computers while they were living in London, resulting in emotional distress. The court of appeal last autumn upheld a high court ruling that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their allegations.

Section 5 of the act specifies that a state does not have immunity from claims for physical or psychological harm resulting from an act or omission that took place in the United Kingdom.

The ruling will also offer guidance regarding additional surveillance allegations being handled by legal teams on behalf of affected individuals.

Technical Details

Legal representatives claimed that "The surveillance program can collect vast amounts of information from infected devices, including capturing all keyboard inputs, telephone conversations, text communications, emails, scheduling information, real-time chats, address books, internet activity, photos, databases, documents and recordings. It enables capture of real-time sound from the device's microphone and camera."

Judicial Analysis

The court of appeal found that external control, overseas, of a electronic device located in the UK represented an act within the UK's jurisdiction. Although the cyber intrusion took place overseas, the effect was that the national jurisdiction of the UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an act in the UK, even if some activities occur abroad. The judicial body also determined that "psychological harm" as defined in the state immunity act encompassed independent psychological damage.

Bahrain's Stance

The appellate decision noted that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with surveillance software, but the high court judge "found, on the based on expert evidence, that the claimants had met the burden upon them of demonstrating on the preponderance of evidence that their computers were infected by spyware by Bahrain's servants or agents."

Plaintiffs' Statements

Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a strong signal to foreign governments who target their non-violent critics with multiple methods including intruding into their private lives and equipment."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the nation, stated: "Our journey has now arrived at the supreme judicial body in the land. I have a responsibility to reveal what I experienced when I believe Bahrain hacked my computer. The impact has been profound – especially for those who placed their trust in me, and for my friends and family."

"Repressive governments like Bahrain must be held accountable for wrecking our lives. They cannot be permitted to hide behind diplomatic immunity to advance their transnational repression on UK territory."

Both men have had their nationality revoked.

Attorney Commentary

A senior legal representative commented: "These proceedings raise essential issues about responsibility for the use of intrusive surveillance technology against political activists and human rights defenders. Our clients, and numerous additional people we represent, have anticipated a long time for clarity on these issues."