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Bahrain is preparing to argue before the UK's supreme court that it possesses sovereign immunity from accusations that it deployed spyware on the devices of two dissidents during their residence in the UK capital.

Court Proceedings Context

Bahrain has previously lost its immunity argument in the high court and appellate court. Bringing the matter to the highest court highlights the importance of this issue for the country's international reputation.

If Bahrain succeed, the decision could have wider implications for how authoritarian governments utilize digital spyware to track and potentially harass opposition figures living in the UK.

Central Issue of Legal Proceedings

The supreme court hearing, starting this midweek, will focus on whether the two men have the standing to claim compensation despite Bahrain's immunity claim, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing psychological harm. The appellate court last autumn supported a previous court decision that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their allegations.

Article 5 of the legislation specifies that a country does not have immunity from legal actions for personal injury resulting from an act or omission that occurred in the UK.

The ruling will also provide clarity regarding additional spyware claims being handled by law firms on behalf of clients.

Software Capabilities

Attorneys claimed that "FinSpy software can collect vast amounts of data from compromised equipment, including recording every keystroke, telephone conversations, text communications, electronic mail, calendar records, real-time chats, address books, internet activity, images, databases, files and videos. It allows capture of live audio from the equipment's audio input and camera."

Judicial Analysis

The appellate court found that external control, from abroad, of a electronic device located in the United Kingdom constituted an act within the UK's jurisdiction. Although the hacking 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 caused by an action in the United Kingdom, even if some activities take place overseas. The court also ruled that "personal injury" as interpreted in the state immunity act encompassed independent psychological damage.

Defense Position

The appellate decision noted that Bahrain rejected the claimants' allegations of compromising the dissidents' computers with surveillance software, but the high court judge "found, on the based on expert evidence, that the claimants had discharged the burden upon them of proving on the balance of probabilities that their devices were infected by spyware by Bahrain's servants or agents."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the progress to date of the legal proceedings regarding the hacking of my computer. It sends a strong signal to overseas authorities who pursue their non-violent critics with various means including intruding into their private lives and equipment."

Mohammed, who left 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 responsibility to expose what I endured when I believe Bahrain hacked my device. The impact has been profound – especially for those who placed their trust in me, and for my loved ones."

"Abusive foreign states like Bahrain must be held accountable for destroying our lives. They cannot be permitted to hide behind diplomatic immunity to pursue their transnational repression on UK territory."

Both men have had their nationality withdrawn.

Legal Perspective

A senior legal representative stated: "This case present fundamental questions about responsibility for the deployment of intrusive surveillance technology against civil society members and members of civil society. Our clients, and many others we advocate for, have anticipated a long time for clarity on these issues."