The Bahraini government is preparing to argue before the Britain's highest judicial body that it enjoys state immunity from accusations that it installed spyware on the computers of two activists during their stay in London.
The Gulf country has been denied its immunity argument in both lower court and court of appeal. Bringing the case to the highest court demonstrates the importance of this issue for the nation's international reputation.
If Bahrain succeed, the decision could have broader consequences for how authoritarian states utilize surveillance technology to monitor and potentially harass political dissidents living in the United Kingdom.
The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two men have the standing to seek damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.
Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used German-made FinFisher spyware to infiltrate their electronic devices while they were residing in London, causing emotional distress. The court of appeal last autumn upheld a previous court decision that the State Immunity Act 1978 does not grant Bahrain state protection against their claims.
Article 5 of the legislation specifies that a state does not have immunity from claims for physical or psychological harm resulting from an act or omission that occurred in the United Kingdom.
The decision will also offer guidance regarding other spyware claims being pursued by legal teams on behalf of clients.
Attorneys stated that "The surveillance program can collect large quantities of data from infected devices, including recording every keystroke, telephone conversations, text communications, emails, scheduling information, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It enables recording of real-time sound from the device's microphone and camera."
The court of appeal found that external control, from abroad, of a electronic device located in the UK represented an act within the British territory. Although the cyber intrusion occurred abroad, the effect 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 some activities take place abroad. The court also ruled that "personal injury" as defined in the immunity legislation encompassed standalone psychiatric injury.
The appeal court ruling noted that Bahrain denied the accusers' claims of infecting the activists' devices with surveillance software, but the high court judge "determined, on the based on specialist testimony, that the plaintiffs had met the burden upon them of demonstrating on the preponderance of evidence that their computers were compromised by spyware by Bahrain's servants or agents."
Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I'm satisfied with the outcome so far of the court case regarding the cyber intrusion of my computer. It sends a clear message to overseas authorities who pursue their peaceful political opponents with various means including violating their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the nation, stated: "This process has now reached the supreme judicial body in the country. I have a duty to reveal what I endured when I am convinced Bahrain compromised my computer. The effect has been profound – especially for those who had confidence in me, and for my friends and family."
"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use state protection to pursue their cross-border persecution on British soil."
The two individuals have had their Bahraini citizenship revoked.
A lead attorney stated: "This case raise essential issues about accountability for the deployment of intrusive surveillance technology against political activists and members of civil society. Our represented individuals, and numerous additional people we advocate for, have anticipated a considerable period for resolution on these issues."
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