Bahrain is set to argue before the UK's supreme court that it enjoys sovereign immunity from allegations that it installed surveillance software on the computers of two activists during their residence in London.
Court Proceedings Context
The Gulf country has been denied its sovereign immunity claim in both high court and appellate court. Taking the case to the highest court demonstrates the significance of this matter for the nation's global standing.
If Bahrain prevail, the ruling could have broader implications for how authoritarian governments utilize surveillance technology to monitor and potentially harass political dissidents residing in the UK.
Central Issue of Supreme Court Hearing
The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two individuals have the legal right to seek damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.
Claims and Proof
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing emotional distress. The court of appeal last October upheld a previous court decision that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.
Article 5 of the legislation specifies that a country does not have protection from claims for physical or psychological harm caused by an action or inaction that took place in the UK.
The ruling will also provide clarity regarding additional spyware claims being handled by law firms on behalf of affected individuals.
Software Capabilities
Attorneys stated that "FinSpy software can collect large quantities of information from infected devices, including capturing all keyboard inputs, telephone conversations, text communications, electronic mail, calendar records, instant messaging, contacts lists, internet activity, images, databases, files and recordings. It allows recording of real-time sound from the equipment's audio input and visual recording device."
Legal Interpretation
The court of appeal found that remote manipulation, overseas, of a electronic device located in the United Kingdom represented an act within the British territory. Even if the hacking occurred abroad, the effect was that the territorial sovereignty of the United Kingdom had been violated.
A foreign state does not have protection for personal injury resulting from an action in the United Kingdom, although certain acts take place abroad. The court also determined that "personal injury" as interpreted in the state immunity act included standalone psychiatric injury.
Bahrain's Stance
The appeal court ruling stated that Bahrain rejected the claimants' allegations of compromising the activists' devices with surveillance software, but the initial court justice "found, on the basis of expert evidence, that the plaintiffs had met the responsibility upon them of demonstrating on the balance of probabilities that their devices were compromised by spyware by Bahraini representatives."
Plaintiffs' Statements
Shehabi, a co-founder of the opposition group al-Wefaq, welcomed with the legal proceedings, stating: "I am pleased with the outcome so far of the legal proceedings regarding the hacking of my computer. It sends a clear message to foreign governments who pursue their non-violent critics with multiple methods including intruding into their private lives and equipment."
Mohammed, who fled Bahrain in 2006 after facing frequent detention within the nation, stated: "This process has now arrived at the supreme judicial body in the country. I have a duty to reveal what I experienced when I am convinced Bahrain compromised my device. The impact has been profound – particularly for those who had confidence in me, and for my loved ones."
"Abusive foreign states like Bahrain must be held accountable for wrecking our lives. They cannot be permitted to use diplomatic immunity to pursue their cross-border persecution on UK territory."
The two individuals have had their Bahraini citizenship revoked.
Attorney Commentary
A senior legal representative commented: "This case present fundamental questions about responsibility for the deployment of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and numerous additional people we represent, have anticipated a considerable period for resolution on these matters."
