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

Legal Battle Background

Bahrain has been denied its sovereign immunity claim in both high court and appellate court. Taking the matter to the supreme court highlights the importance of this matter for the country's international reputation.

Should Bahrain prevail, the decision could have wider implications for how authoritarian governments employ digital spyware to track and potentially harass opposition figures living in the UK.

Key Focus of Legal Proceedings

The legal proceedings, starting this midweek, will focus on whether the two men have the legal right to seek damages despite Bahrain's immunity claim, rather than addressing whether compensation is warranted.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing psychological harm. The court of appeal last October supported a previous court decision that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.

Section 5 of the legislation states that a state does not have protection from legal actions for personal injury resulting from an action or inaction that occurred in the UK.

The decision will also offer guidance regarding other surveillance allegations being pursued by legal teams on behalf of clients.

Software Capabilities

Legal representatives claimed that "The surveillance program can gather vast amounts of information from compromised equipment, including recording every keystroke, telephone conversations, text communications, electronic mail, calendar records, real-time chats, address books, browsing history, photos, data collections, documents and videos. It allows capture of real-time sound from the equipment's audio input and camera."

Judicial Analysis

The court of appeal determined that remote manipulation, overseas, of a computer located in the UK represented an action within the UK's jurisdiction. Even if the hacking occurred abroad, the consequence was that the territorial sovereignty of the United Kingdom had been violated.

A foreign state does not have protection for psychological harm caused by an act in the UK, even if certain activities take place abroad. The court also determined that "psychological harm" as defined in the state immunity act encompassed standalone psychiatric injury.

Bahrain's Stance

The appellate decision stated that Bahrain denied the accusers' claims of compromising the activists' devices with surveillance software, but the high court judge "determined, on the basis of specialist testimony, that the plaintiffs had discharged the responsibility upon them of demonstrating on the balance of probabilities that their computers were compromised by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, stating: "I am pleased with the progress to date of the legal proceedings regarding the cyber intrusion of my computer. It delivers a clear message to overseas authorities who target their non-violent critics with multiple methods including violating their personal affairs and devices."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, stated: "This process has now reached the supreme judicial body in the country. I have a duty to expose what I endured when I believe Bahrain compromised 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 brought to justice for destroying our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their transnational repression on UK territory."

Both men have had their nationality withdrawn.

Attorney Commentary

A senior legal representative commented: "This case raise fundamental questions about responsibility for the use of invasive monitoring systems against political activists and human rights defenders. Our represented individuals, and numerous additional people we advocate for, have waited a long time for resolution on these issues."