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The Bahraini government is preparing to claim before the UK's supreme court that it enjoys sovereign immunity from accusations that it installed spyware on the devices of two activists during their residence in the UK capital.

Court Proceedings Context

Bahrain has previously lost its sovereign immunity claim in the lower court and court of appeal. Taking the matter to the supreme court demonstrates the significance of this issue for the country's international reputation.

If Bahrain succeed, the decision could have wider implications for how authoritarian governments utilize surveillance technology to track and potentially harass opposition figures living in the UK.

Central Issue of Supreme Court Hearing

The legal proceedings, starting this midweek, will concentrate on whether the two individuals have the standing to seek damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, resulting in emotional distress. The court of appeal last October upheld a previous court decision that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.

Article 5 of the act states that a country does not have protection from legal actions for physical or psychological harm resulting from an action or inaction that occurred in the United Kingdom.

The ruling will also offer guidance regarding additional spyware claims being pursued by legal teams on behalf of affected individuals.

Technical Details

Legal representatives claimed that "The surveillance program can gather large quantities of data from compromised equipment, including recording all keyboard inputs, voice calls, text communications, emails, calendar records, real-time chats, address books, browsing history, photos, databases, files and videos. It enables recording of real-time sound from the device's microphone and visual recording device."

Judicial Analysis

The appellate court found that external control, overseas, of a computer situated in the UK constituted an action within the British territory. Although the hacking took place overseas, the effect was that the territorial sovereignty of the UK had suffered interference.

A overseas nation does not have protection for psychological harm caused by an act in the UK, although some activities take place overseas. The court also ruled that "psychological harm" as defined in the immunity legislation included standalone psychiatric injury.

Defense Position

The appellate decision noted that Bahrain denied the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "found, on the based on expert evidence, that the claimants had met the burden upon them of demonstrating on the balance of probabilities 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 legal proceedings, saying: "I am pleased with the outcome so far of the court case regarding the cyber intrusion of my electronic device. It delivers a strong signal to overseas authorities who pursue their non-violent critics with various means including violating their personal affairs and devices."

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

"Abusive foreign states like Bahrain must be held accountable for wrecking our lives. They cannot be permitted to use diplomatic immunity to pursue their transnational repression on British soil."

The two individuals 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 political activists and members of civil society. Our clients, and numerous additional people we advocate for, have anticipated a long time for resolution on these issues."