Bahrain is set to claim before the Britain's highest judicial body that it possesses state immunity from accusations that it deployed spyware on the devices of two activists during their stay in the UK capital.
Court Proceedings Background
Bahrain has previously lost its sovereign immunity claim in both high court and appellate court. Taking the case to the supreme court demonstrates the significance of this matter for the nation's international reputation.
Should Bahrain succeed, the ruling could have wider consequences for how authoritarian governments employ digital spyware to track and possibly target opposition figures residing in the United Kingdom.
Key Focus of Legal Proceedings
The legal proceedings, starting this midweek, will concentrate on whether the two men have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than addressing whether compensation is warranted.
Allegations and Evidence
Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher spyware to infiltrate their electronic devices while they were residing in London, resulting in emotional distress. The appellate court last autumn supported a high court ruling that the 1978 immunity legislation does not grant Bahrain state protection against their allegations.
Section 5 of the act specifies that a state does not have immunity from legal actions for personal injury caused by an action or inaction that occurred in the United Kingdom.
The ruling will also offer guidance regarding other spyware claims being handled by law firms on behalf of clients.
Software Capabilities
Legal representatives stated that "FinSpy software can collect vast amounts of data from infected devices, including capturing all keyboard inputs, voice calls, messages, emails, calendar records, real-time chats, contacts lists, internet activity, photos, data collections, files and videos. It allows capture of live audio from the device's microphone and visual recording device."
Legal Interpretation
The appellate court found that remote manipulation, overseas, of a computer located in the United Kingdom constituted an action within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have immunity for psychological harm caused by an action in the UK, even if some acts occur abroad. The court also ruled that "personal injury" as defined in the immunity legislation encompassed independent psychological damage.
Bahrain's Stance
The appellate decision noted that Bahrain denied the claimants' allegations of compromising the dissidents' computers with surveillance software, but the initial court justice "found, on the basis of expert evidence, that the claimants had discharged 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 co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I'm satisfied with the progress to date of the court case regarding the hacking of my electronic device. It delivers a clear message to foreign governments who pursue their non-violent critics with various means including intruding into their private lives and devices."
Mohammed, who fled Bahrain in 2006 after facing frequent detention within the country, commented: "This process has now arrived at the supreme judicial body in the country. I have a duty to expose what I endured when I believe Bahrain hacked my device. The effect has been profound – particularly for those who had confidence in me, and for my loved ones."
"Repressive governments like Bahrain must be held accountable for destroying our lives. They cannot be permitted to hide behind state protection to pursue their transnational repression on UK territory."
The two individuals have had their Bahraini citizenship revoked.
Legal Perspective
A lead attorney stated: "These proceedings raise essential issues about responsibility for the use of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and many others we advocate for, have waited a considerable period for clarity on these matters."
