The Bahraini government is preparing to argue before the UK's supreme court that it enjoys state immunity from accusations that it installed surveillance software on the computers of two activists during their stay in London.
The Gulf country has been denied its sovereign immunity claim in both lower court and appellate court. Bringing the matter to the supreme court demonstrates the importance of this matter for the country's global standing.
If Bahrain prevail, the decision could have wider implications for how authoritarian governments employ surveillance technology to monitor and possibly target political dissidents living in the UK.
The supreme court hearing, starting this Wednesday, will focus on whether the two men have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing emotional distress. The court of appeal last autumn supported a high court ruling that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.
Section 5 of the act states that a state does not have immunity from legal actions for physical or psychological harm caused by an action or inaction that occurred in the United Kingdom.
The decision will also provide clarity regarding additional surveillance allegations being handled by legal teams on behalf of clients.
Legal representatives claimed that "The surveillance program can collect large quantities of data from compromised equipment, including capturing all keyboard inputs, voice calls, messages, electronic mail, calendar records, instant messaging, address books, browsing history, images, databases, documents and videos. It allows capture of real-time sound from the equipment's audio input and visual recording device."
The appellate court determined that remote manipulation, from abroad, of a electronic device located in the United Kingdom represented an action within the UK's jurisdiction. Although the cyber intrusion took place overseas, the consequence was that the national jurisdiction of the UK had suffered interference.
A overseas nation does not have immunity for personal injury resulting from an act in the United Kingdom, even if certain acts occur overseas. The court also ruled that "psychological harm" as defined in the immunity legislation encompassed standalone psychiatric injury.
The appeal court ruling stated that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "found, on the basis of expert evidence, that the plaintiffs had met the responsibility upon them of demonstrating on the preponderance of evidence that their computers were compromised by malicious software by Bahraini representatives."
Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I'm satisfied with the progress to date of the legal proceedings regarding the cyber intrusion of my computer. It delivers a clear message to foreign governments who target their non-violent critics with various means including intruding into their private lives and equipment."
Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the nation, stated: "This process has now reached the supreme judicial body in the country. I have a duty to expose what I experienced when I am convinced Bahrain compromised my device. The impact has been profound – especially for those who placed their trust 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 cross-border persecution on UK territory."
The two individuals have had their Bahraini citizenship revoked.
A senior legal representative commented: "These proceedings present essential issues about accountability for the use of intrusive surveillance technology against political activists and members of civil society. Our clients, and many others we represent, have waited a considerable period for resolution on these issues."
Elara is a financial strategist with over a decade of experience in wealth management and entrepreneurship.
