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The Bahraini government is preparing to argue before the UK's supreme court that it possesses state immunity from accusations that it deployed surveillance software on the devices of two dissidents during their residence in the UK capital.

Court Proceedings Context

Bahrain has previously lost its immunity argument in both high court and court of appeal. Bringing the case to the highest court highlights the importance of this matter for the nation's international reputation.

If Bahrain prevail, the decision could have broader implications for how authoritarian states employ digital spyware to monitor and potentially harass opposition figures living in the United Kingdom.

Central Issue of Legal Proceedings

The supreme court hearing, starting this Wednesday, will concentrate on whether the two men have the standing to seek compensation despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.

Allegations and Evidence

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

Section 5 of the legislation states that a country does not have protection from claims for personal injury resulting from an act or omission that occurred in the United Kingdom.

The decision will also offer guidance regarding other spyware claims being handled by legal teams on behalf of clients.

Technical Details

Attorneys claimed that "FinSpy software can gather vast amounts of data from compromised equipment, including recording all keyboard inputs, voice calls, text communications, emails, calendar records, real-time chats, address books, browsing history, images, data collections, documents and videos. It enables capture of live audio from the device's microphone and visual recording device."

Judicial Analysis

The court of appeal found that remote manipulation, from abroad, of a electronic device located in the United Kingdom represented an act within the UK's jurisdiction. Even if the hacking took place overseas, the consequence was that the national jurisdiction of the UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an act in the UK, although some activities occur overseas. The judicial body also ruled that "personal injury" as defined in the state immunity act encompassed independent psychological damage.

Bahrain's Stance

The appellate decision noted that Bahrain denied the claimants' allegations of compromising the activists' devices with spyware, but the initial court justice "determined, on the basis of specialist testimony, that the plaintiffs had discharged the responsibility upon them of demonstrating on the balance of probabilities that their computers were infected by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a founder of the opposition group al-Wefaq, welcomed with the legal proceedings, saying: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my electronic device. It delivers a strong signal to overseas authorities who target their peaceful political opponents with multiple methods including violating their personal affairs and devices."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, commented: "This process has now arrived at the supreme judicial body in the land. I have a duty to expose what I experienced when I am convinced Bahrain compromised my computer. 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 permitted to use state protection to advance their cross-border persecution on UK territory."

Both men have had their Bahraini citizenship withdrawn.

Attorney Commentary

A lead attorney commented: "This case raise fundamental questions about responsibility for the use of invasive monitoring systems against civil society members and members of civil society. Our clients, and many others we advocate for, have anticipated a considerable period for resolution on these matters."