Bahrain to Present Case at British Supreme Court Over State Immunity in Spyware Claims
The Bahraini government is set to argue before the Britain's highest judicial body that it possesses state immunity from accusations that it installed spyware on the devices of two activists during their stay in the UK capital.
Court Proceedings Context
The Gulf country has previously lost its sovereign immunity claim in the high court and appellate court. Bringing the matter to the highest court highlights the significance 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 political dissidents residing in the UK.
Central Issue of Supreme Court Hearing
The supreme court hearing, starting this midweek, will focus on whether the two men have the standing to seek compensation despite Bahrain's immunity claim, rather than addressing whether damages are applicable.
Claims and Evidence
Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher spyware to compromise their electronic devices while they were living in London, resulting in emotional distress. The court of appeal last autumn supported a high court ruling that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their allegations.
Article 5 of the legislation specifies that a state does not have immunity from legal actions for personal injury caused by an act or omission that occurred in the United Kingdom.
The ruling will also provide clarity regarding additional spyware claims being handled by law firms on behalf of affected individuals.
Technical Details
Attorneys claimed that "FinSpy software can collect vast amounts of data from infected devices, including recording all keyboard inputs, telephone conversations, messages, emails, calendar records, real-time chats, contacts lists, internet activity, images, databases, files and videos. It enables capture of real-time sound from the equipment's audio input and visual recording device."
Legal Interpretation
The appellate court determined that remote manipulation, overseas, of a electronic device located in the UK constituted an action within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the consequence was that the national jurisdiction of the UK had been violated.
A overseas nation does not have immunity for personal injury resulting from an action in the United Kingdom, although some activities take place overseas. The court also determined that "psychological harm" as interpreted in the state immunity act encompassed standalone psychiatric injury.
Bahrain's Stance
The appeal court ruling noted that Bahrain denied the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "found, on the basis of specialist testimony, that the claimants had met the burden upon them of demonstrating on the preponderance of evidence that their computers were infected by malicious software by Bahrain's servants or agents."
Claimants' Comments
Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I am pleased with the progress to date of the court case regarding the cyber intrusion of my computer. It delivers a clear message to overseas authorities who pursue their non-violent critics with various means including violating their private lives and equipment."
Mohammed, who left Bahrain in 2006 after experiencing frequent detention within the country, commented: "This process has now reached the supreme judicial body in the land. I have a responsibility to reveal what I endured when I believe Bahrain compromised my device. The impact has been devastating – especially for those who had confidence in me, and for my loved ones."
"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to hide behind state protection to advance their transnational repression on British soil."
The two individuals have had their nationality revoked.
Legal Perspective
A senior legal representative commented: "These proceedings present essential issues about responsibility for the use of intrusive surveillance technology against civil society members and members of civil society. Our represented individuals, and many others we advocate for, have anticipated a considerable period for clarity on these issues."
