Bahrain to Argue at British Highest Court Over Sovereign Immunity in Spyware Allegations
Bahrain is preparing to argue before the Britain's highest judicial body that it enjoys sovereign immunity from allegations that it installed surveillance software on the computers of two activists during their residence in the UK capital.
Court Proceedings Background
Bahrain has been denied its sovereign immunity claim in both high court and court of appeal. Bringing the matter to the supreme court demonstrates the significance of this issue for the nation's global standing.
If Bahrain prevail, the decision could have wider implications for how authoritarian states employ digital spyware to monitor and potentially harass political dissidents living in the UK.
Central Issue of Supreme Court Hearing
The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two individuals have the standing to claim compensation despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.
Allegations and Proof
Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher spyware to compromise their computers while they were living in London, resulting in emotional distress. The appellate court last October upheld a previous court decision that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.
Section 5 of the act specifies that a state does not have protection from legal actions for personal injury resulting from an action or inaction that occurred in the United Kingdom.
The decision will also provide clarity regarding other surveillance allegations being pursued by law firms on behalf of affected individuals.
Software Capabilities
Legal representatives claimed that "FinSpy software can gather large quantities of information from infected devices, including capturing every keystroke, voice calls, messages, electronic mail, calendar records, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It allows capture of real-time sound from the equipment's audio input and camera."
Legal Interpretation
The appellate court found that external control, overseas, of a computer situated in the UK constituted an action within the British territory. Although the cyber intrusion occurred abroad, the consequence was that the territorial sovereignty of the United Kingdom had been violated.
A overseas nation does not have protection for psychological harm caused by an action in the United Kingdom, even if some activities take place overseas. The court also determined that "psychological harm" as interpreted in the state immunity act included standalone psychiatric injury.
Bahrain's Stance
The appellate decision noted that Bahrain rejected the accusers' claims of compromising the activists' devices with spyware, but the initial court justice "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 compromised by malicious software by Bahraini representatives."
Claimants' Comments
Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my electronic device. It sends a clear message to overseas authorities who pursue their non-violent critics with various means including violating their private lives and devices."
Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the nation, stated: "Our journey has now arrived at the highest court in the country. I have a duty to expose what I experienced when I believe Bahrain compromised my device. The impact has been devastating – particularly for those who had confidence in me, and for my loved ones."
"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to use diplomatic immunity to advance their cross-border persecution on UK territory."
Both men have had their nationality withdrawn.
Attorney Commentary
A senior legal representative stated: "This case present fundamental questions about responsibility for the use of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and numerous additional people we represent, have anticipated a long time for clarity on these matters."
