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The Bahraini government is preparing to claim before the Britain's highest judicial body that it possesses state immunity from allegations that it installed surveillance software on the devices of two activists during their residence in the UK capital.

Legal Battle Context

The Gulf country has previously lost its sovereign immunity claim in both high court and appellate court. Taking the matter to the supreme court highlights the importance of this issue for the nation's global standing.

If Bahrain succeed, the decision could have broader implications for how authoritarian governments employ digital spyware to track and potentially harass opposition figures residing in the UK.

Central Issue of Legal Proceedings

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

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced 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 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.

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

The ruling will also provide clarity regarding other spyware claims being pursued by legal teams on behalf of affected individuals.

Technical Details

Attorneys stated that "FinSpy software can gather large quantities of data from infected devices, including capturing all keyboard inputs, telephone conversations, messages, electronic mail, calendar records, instant messaging, contacts lists, browsing history, photos, databases, files and videos. It enables recording of real-time sound from the equipment's audio input and visual recording device."

Legal Interpretation

The appellate court determined that external control, from abroad, of a electronic device located in the United Kingdom constituted an act within the British territory. Even if the hacking occurred abroad, the effect was that the territorial sovereignty of the United Kingdom had suffered interference.

A foreign state does not have immunity for personal injury resulting from an act in the UK, although certain activities occur overseas. The court also determined that "personal injury" as interpreted in the immunity legislation encompassed standalone psychiatric injury.

Bahrain's Stance

The appeal court ruling stated that Bahrain denied the claimants' allegations of infecting the dissidents' computers with surveillance software, but the high court judge "found, on the basis of specialist testimony, that the claimants had discharged the burden upon them of demonstrating on the balance of probabilities that their computers were infected by spyware by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my computer. It sends a clear message to overseas authorities who pursue their peaceful political opponents with multiple methods including intruding into their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the nation, commented: "Our journey has now reached the supreme judicial body in the land. I have a responsibility to expose what I endured when I believe Bahrain compromised my computer. The impact has been devastating – 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 permitted to use state protection to pursue their transnational repression on UK territory."

The two individuals have had their Bahraini citizenship revoked.

Legal Perspective

A lead attorney commented: "These proceedings raise fundamental questions about responsibility for the use of intrusive surveillance technology against civil society members and human rights defenders. Our represented individuals, and numerous additional people we advocate for, have anticipated a considerable period for clarity on these matters."