Bahrain to Present Case at UK Highest Court Over Sovereign Immunity in Surveillance Allegations

Bahrain is preparing to claim before the UK's supreme court that it possesses sovereign immunity from allegations that it deployed surveillance software on the computers of two activists during their residence in London.

Court Proceedings Context

Bahrain has previously lost its sovereign immunity claim in the high court and court of appeal. Bringing the matter to the highest court demonstrates the significance of this matter for the nation's international reputation.

Should Bahrain prevail, the ruling could have broader consequences for how authoritarian governments utilize surveillance technology to track and potentially harass opposition figures living in the UK.

Key Focus of Supreme Court Hearing

The legal proceedings, starting this midweek, will concentrate on whether the two men have the legal right to seek compensation despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used Germany-produced FinFisher surveillance software to infiltrate their electronic devices while they were living in London, causing emotional distress. The appellate court last October upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain state protection against their claims.

Section 5 of the act specifies that a country does not have protection from claims for physical or psychological harm resulting from an act or omission that took place in the UK.

The decision will also provide clarity regarding additional surveillance allegations being pursued by law firms on behalf of clients.

Technical Details

Attorneys claimed that "FinSpy software can collect vast amounts of information from compromised equipment, including recording every keystroke, telephone conversations, messages, electronic mail, scheduling information, real-time chats, contacts lists, browsing history, photos, databases, documents and recordings. It enables capture of live audio from the equipment's audio input and camera."

Judicial Analysis

The court of appeal determined that remote manipulation, from abroad, of a electronic device situated in the UK represented an action within the British territory. Although the cyber intrusion took place overseas, the consequence was that the national jurisdiction of the United Kingdom had been violated.

A foreign state does not have immunity for psychological harm resulting from an act in the United Kingdom, even if some acts occur abroad. The judicial body also ruled that "psychological harm" as interpreted in the state immunity act encompassed standalone psychiatric injury.

Bahrain's Stance

The appellate decision stated that Bahrain denied the accusers' claims of infecting the dissidents' computers with spyware, but the high court judge "found, on the basis of specialist testimony, that the plaintiffs had discharged the responsibility upon them of proving on the balance of probabilities that their computers were compromised by spyware by Bahrain's servants or agents."

Plaintiffs' Statements

Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, stating: "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 foreign governments who pursue their peaceful political opponents with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the country, stated: "Our journey 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 device. The effect has been profound – particularly for those who placed their trust in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be allowed to use diplomatic immunity to advance their transnational repression on British soil."

The two individuals have had their nationality withdrawn.

Attorney Commentary

A lead attorney stated: "This case present fundamental questions about responsibility for the use of invasive monitoring systems against political activists and members of civil society. Our represented individuals, and many others we represent, have waited a considerable period for clarity on these issues."