The Gulf nation to Argue at British Highest Court Over Sovereign Immunity in Spyware Claims
The Bahraini government is set to argue before the Britain's highest judicial body that it enjoys state immunity from accusations that it installed surveillance software on the computers of two dissidents 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. Bringing the matter to the supreme court highlights the importance of this matter for the country's international reputation.
If Bahrain prevail, the decision could have broader consequences for how authoritarian states employ surveillance technology to monitor and possibly target opposition figures living in the United Kingdom.
Key Focus of Legal Proceedings
The legal proceedings, starting this Wednesday, will concentrate on whether the two men have the legal right to seek compensation despite Bahrain's immunity claim, rather than determining whether compensation is warranted.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their computers while they were living in London, causing emotional distress. The court of appeal last autumn supported a high court ruling that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.
Section 5 of the legislation specifies that a country does not have immunity from legal actions for physical or psychological harm resulting from an action or inaction that took place in the United Kingdom.
The ruling will also offer guidance regarding additional spyware claims being pursued by law firms on behalf of clients.
Software Capabilities
Attorneys stated that "The surveillance program can collect vast amounts of information from compromised equipment, including capturing every keystroke, telephone conversations, text communications, electronic mail, calendar records, instant messaging, address books, browsing history, images, data collections, files and recordings. It enables recording of live audio from the equipment's audio input and camera."
Judicial Analysis
The appellate court determined that remote manipulation, from abroad, of a electronic device located in the United Kingdom represented an act within the British territory. Although the cyber intrusion took place overseas, the consequence was that the territorial sovereignty of the UK had suffered interference.
A overseas nation does not have protection for personal injury caused by an action in the United Kingdom, even if certain acts occur overseas. The court also ruled that "psychological harm" as interpreted in the immunity legislation encompassed independent psychological damage.
Defense Position
The appellate decision stated that Bahrain rejected the accusers' claims of infecting the dissidents' computers with surveillance software, but the initial court justice "found, on the basis of specialist testimony, that the plaintiffs had discharged the burden upon them of proving on the preponderance of evidence that their devices were compromised by malicious software 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 am pleased with the outcome so far of the court case regarding the cyber intrusion of my computer. It delivers a strong signal to foreign governments who pursue their peaceful political opponents with various means including intruding into their personal affairs and devices."
Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, commented: "Our journey has now reached the highest court in the land. I have a responsibility to reveal what I endured when I believe Bahrain compromised my computer. The effect has been profound – especially for those who placed their trust in me, and for my friends and family."
"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use state protection to advance their cross-border persecution on UK territory."
Both men have had their nationality withdrawn.
Attorney Commentary
A lead attorney stated: "This case present essential issues about accountability for the use of intrusive surveillance technology against political activists and human rights defenders. Our represented individuals, and many others we represent, have anticipated a long time for clarity on these matters."
