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Bahrain is set to argue before the UK's supreme court that it possesses sovereign immunity from allegations that it installed surveillance software on the devices of two activists during their stay in London.

Legal Battle Context

The Gulf country has previously lost its sovereign immunity claim in both high court and court of appeal. Taking the case to the highest court highlights the significance of this issue for the country's international reputation.

If Bahrain succeed, the decision could have broader implications for how authoritarian states employ surveillance technology to monitor and possibly target opposition figures residing in the United Kingdom.

Key Focus of Supreme Court Hearing

The supreme court hearing, scheduled to begin this midweek, will focus on whether the two men have the legal right to claim compensation 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 psychological harm. The court of appeal last autumn upheld a high court ruling that the State Immunity Act 1978 does not provide Bahrain state protection against their allegations.

Section 5 of the act states that a state does not have protection from claims for personal injury caused by an action or inaction that took place in the United Kingdom.

The decision will also offer guidance regarding additional spyware claims being pursued by law firms on behalf of affected individuals.

Technical Details

Legal representatives claimed that "The surveillance program can gather large quantities of data from compromised equipment, including capturing every keystroke, voice calls, text communications, emails, scheduling information, instant messaging, address books, browsing history, images, databases, files and recordings. It allows capture of live audio from the equipment's audio input and visual recording device."

Legal Interpretation

The appellate court determined that external control, overseas, of a computer situated in the United Kingdom represented an action within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the United Kingdom had suffered interference.

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

Bahrain's Stance

The appellate decision stated that Bahrain rejected the claimants' allegations of infecting the activists' devices with spyware, but the high court judge "determined, on the based on expert evidence, that the claimants had discharged the burden upon them of proving on the preponderance of evidence that their devices were infected by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the outcome so far of the court case regarding the cyber intrusion of my electronic device. It sends a strong signal to overseas authorities who target their peaceful political opponents with various means including intruding into their private lives and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the country, commented: "Our journey has now reached the supreme judicial body in the country. I have a duty to expose what I endured when I believe Bahrain hacked my computer. The effect has been devastating – particularly for those who had confidence in me, and for my friends and family."

"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to hide behind state protection to pursue their cross-border persecution on British soil."

Both men have had their nationality withdrawn.

Legal Perspective

A senior legal representative commented: "This case raise fundamental questions about accountability for the use of intrusive surveillance technology against civil society members and members of civil society. Our clients, and many others we advocate for, have anticipated a long time for clarity on these issues."