The Gulf nation to Argue at UK Supreme Court Over Sovereign Immunity in Spyware Claims

Bahrain is preparing to claim before the UK's supreme court that it enjoys sovereign immunity from allegations that it installed surveillance software on the devices of two activists during their residence in the UK capital.

Court Proceedings Context

Bahrain has been denied its sovereign immunity claim in both high court and court of appeal. Bringing the matter to the highest court highlights the importance of this issue for the country's global standing.

If Bahrain prevail, the ruling could have wider implications for how authoritarian states employ surveillance technology to track and possibly target opposition figures residing in the UK.

Central Issue of Supreme Court Hearing

The supreme court hearing, starting this midweek, will focus on whether the two individuals have the legal right to claim compensation despite Bahrain's sovereign immunity argument, rather than addressing whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used Germany-produced FinFisher spyware to infiltrate their computers while they were living in London, causing psychological harm. The appellate court last autumn upheld a previous court decision that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their allegations.

Section 5 of the legislation specifies that a country does not have immunity from legal actions for personal injury resulting from an action or inaction that took place in the United Kingdom.

The ruling will also offer guidance regarding additional surveillance allegations being pursued by law firms on behalf of affected individuals.

Technical Details

Legal representatives claimed that "FinSpy software can collect large quantities of data from infected devices, including capturing every keystroke, voice calls, text communications, emails, calendar records, instant messaging, contacts lists, browsing history, photos, data collections, documents and videos. It allows recording of live audio from the equipment's audio input and camera."

Judicial Analysis

The appellate court determined that external control, from abroad, of a computer situated in the United Kingdom represented an action within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the United Kingdom had been violated.

A foreign state does not have immunity for psychological harm caused by an act in the UK, although some acts take place abroad. The court also ruled that "personal injury" as defined in the immunity legislation included standalone psychiatric injury.

Defense Position

The appeal court ruling noted that Bahrain denied the accusers' claims of infecting the dissidents' computers with surveillance software, but the initial court justice "determined, on the based on specialist testimony, that the claimants had met the burden upon them of demonstrating on the balance of probabilities that their devices were compromised by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my electronic device. It delivers a clear message to overseas authorities who pursue their peaceful political opponents with various means including violating their private lives and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the nation, stated: "This process has now reached the highest court in the land. I have a responsibility to expose what I experienced when I am convinced Bahrain compromised my computer. The impact has been profound – particularly for those who placed their trust in me, and for my loved ones."

"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be allowed to hide behind state protection to advance their cross-border persecution on UK territory."

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

A lead attorney stated: "These proceedings present fundamental questions about responsibility for the use of invasive monitoring systems against political activists and human rights defenders. Our clients, and numerous additional people we advocate for, have anticipated a considerable period for clarity on these matters."