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Bahrain is set to argue before the UK's supreme court that it possesses state immunity from allegations that it deployed surveillance software on the devices of two dissidents during their stay in the UK capital.

Legal Battle Context

Bahrain has previously lost its sovereign immunity claim in both high court and appellate court. Taking the case to the supreme court highlights the significance of this matter for the nation's international reputation.

If Bahrain succeed, the decision could have broader consequences for how authoritarian governments utilize surveillance technology to monitor and potentially harass opposition figures living in the United Kingdom.

Key Focus of Legal Proceedings

The supreme court hearing, starting this midweek, will focus on whether the two individuals have the standing to claim compensation despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher spyware to compromise their electronic devices while they were living in London, causing emotional distress. The court of appeal last autumn supported a high court ruling that the State Immunity Act 1978 does not provide Bahrain sovereign immunity against their allegations.

Article 5 of the act states that a state does not have immunity from legal actions for personal injury caused by an act or omission that occurred in the UK.

The decision will also provide clarity regarding other spyware claims being handled by law firms on behalf of affected individuals.

Software Capabilities

Attorneys stated that "FinSpy software can gather vast amounts of information from compromised equipment, including recording all keyboard inputs, voice calls, text communications, electronic mail, calendar records, instant messaging, address books, browsing history, photos, data collections, documents and videos. It enables capture of real-time sound from the equipment's audio input and visual recording device."

Legal Interpretation

The appellate court found that external control, overseas, of a computer located in the United Kingdom represented an act within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the United Kingdom had suffered interference.

A overseas nation does not have protection for personal injury caused by an act in the United Kingdom, even if certain acts take place overseas. The judicial body also ruled that "psychological harm" as interpreted in the immunity legislation included standalone psychiatric injury.

Bahrain's Stance

The appeal court ruling stated that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the initial court justice "determined, on the based on expert evidence, that the plaintiffs had discharged the responsibility upon them of proving on the preponderance of evidence that their devices were compromised by malicious software by Bahraini representatives."

Claimants' Comments

Shehabi, a founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, saying: "I'm satisfied with the progress to date of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a strong signal to foreign governments who target their peaceful political opponents with various means including intruding into their private lives and equipment."

Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the country, commented: "This process has now arrived at the highest court in the country. I have a responsibility to expose what I experienced when I am convinced Bahrain compromised my device. The impact has been devastating – particularly for those who had confidence in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to use diplomatic immunity to pursue their transnational repression on UK territory."

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

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