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Bahrain is set to argue before the Britain's highest judicial body that it enjoys state immunity from allegations that it installed surveillance software on the devices of two activists during their stay in the UK capital.

Court Proceedings Background

The Gulf country has previously lost its immunity argument in the lower court and appellate court. Bringing the case to the highest court highlights the importance of this matter for the nation's global standing.

Should Bahrain prevail, the decision could have broader consequences for how authoritarian governments utilize digital spyware to track and possibly target opposition figures residing in the UK.

Key Focus of Legal Proceedings

The legal proceedings, starting this midweek, will concentrate on whether the two individuals have the standing to claim damages despite Bahrain's immunity claim, rather than determining whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their computers while they were living in London, resulting in emotional distress. The court of appeal last autumn upheld a high court ruling that the State Immunity Act 1978 does not grant Bahrain sovereign immunity against their claims.

Article 5 of the act specifies that a country does not have immunity from claims for physical or psychological harm caused by an action or inaction that took place in the UK.

The ruling will also provide clarity regarding additional surveillance allegations being pursued by legal teams on behalf of affected individuals.

Technical Details

Attorneys claimed that "FinSpy software can gather vast amounts of data from infected devices, including recording every keystroke, telephone conversations, text communications, emails, calendar records, real-time chats, contacts lists, browsing history, images, databases, documents and recordings. It allows recording of real-time sound from the device's microphone and visual recording device."

Judicial Analysis

The appellate court determined that external control, from abroad, of a computer located in the UK represented an action within the British territory. Although the hacking took place overseas, the consequence was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have immunity for personal injury caused by an action in the United Kingdom, even if some acts take place overseas. The court also ruled that "personal injury" as defined in the immunity legislation included standalone psychiatric injury.

Bahrain's Stance

The appellate decision noted that Bahrain denied the accusers' claims of infecting the dissidents' computers with spyware, but the initial court justice "determined, on the based on specialist testimony, that the plaintiffs had met the responsibility upon them of demonstrating on the balance of probabilities that their devices were infected by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I'm satisfied with the outcome so far of the legal proceedings regarding the hacking of my computer. It sends a strong signal to foreign governments who target their non-violent critics with multiple methods including intruding into their private lives and devices."

Mohammed, who fled Bahrain in 2006 after facing frequent detention within the country, stated: "Our journey has now reached the supreme judicial body in the country. I have a responsibility to reveal what I endured when I am convinced Bahrain compromised my computer. The effect has been profound – especially for those who placed their trust in me, and for my loved ones."

"Repressive governments like Bahrain must be held accountable for wrecking our lives. They cannot be allowed to hide behind state protection to pursue their transnational repression on British soil."

Both men have had their Bahraini citizenship revoked.

Attorney Commentary

A senior legal representative stated: "This case present fundamental questions about responsibility for the deployment of invasive monitoring systems 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."