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 computers of two dissidents during their residence in the UK capital.
Legal Battle Background
Bahrain has been denied its immunity argument in the lower court and court of appeal. Bringing the case to the highest court demonstrates the importance of this matter for the nation's global standing.
Should Bahrain succeed, the decision could have wider implications for how authoritarian states employ surveillance technology to monitor and possibly target opposition figures living in the United Kingdom.
Central Issue of Supreme Court Hearing
The supreme court hearing, scheduled to begin this Wednesday, will concentrate on whether the two men have the legal right to seek damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.
Allegations and Evidence
Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher spyware to infiltrate their computers while they were residing in London, causing psychological harm. The court of appeal last October supported a previous court decision that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.
Article 5 of the act specifies that a country does not have immunity from legal actions for physical or psychological harm resulting from an act or omission that took place in the United Kingdom.
The decision will also provide clarity regarding additional spyware claims being handled by law firms on behalf of clients.
Technical Details
Attorneys claimed that "FinSpy software can gather vast amounts of information from infected devices, including capturing all keyboard inputs, telephone conversations, text communications, electronic mail, scheduling information, real-time chats, contacts lists, internet activity, images, data collections, files and recordings. It allows recording of live audio from the device's microphone and visual recording device."
Legal Interpretation
The appellate court found that remote manipulation, from abroad, of a electronic device located in the UK constituted an act within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have immunity for personal injury caused by an act in the UK, even if certain acts occur abroad. The court also ruled that "psychological harm" as interpreted in the immunity legislation encompassed standalone psychiatric injury.
Defense Position
The appeal court ruling noted that Bahrain denied the claimants' allegations of compromising the activists' devices with surveillance software, but the initial court justice "determined, on the basis of specialist testimony, that the plaintiffs had discharged the burden upon them of proving on the balance of probabilities that their devices were infected by malicious software by Bahrain's servants or agents."
Plaintiffs' Statements
Shehabi, a founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the outcome so far of the legal proceedings regarding the hacking of my computer. It sends a strong signal to overseas authorities who target their peaceful political opponents with multiple methods including violating their private lives and devices."
Mohammed, who fled Bahrain in 2006 after experiencing repeated arrests within the nation, stated: "Our journey has now arrived at the supreme judicial body in the country. I have a responsibility to reveal what I endured when I am convinced Bahrain hacked my device. The impact has been devastating – particularly for those who had confidence in me, and for my loved ones."
"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their transnational repression on UK territory."
The two individuals have had their Bahraini citizenship withdrawn.
Attorney Commentary
A senior legal representative stated: "These proceedings raise fundamental questions about responsibility for the deployment of intrusive surveillance technology against political activists and human rights defenders. Our represented individuals, and numerous additional people we represent, have waited a long time for resolution on these matters."
