Bahrain to Argue at UK Supreme Court Over Sovereign Immunity in Surveillance Claims
Bahrain is set to argue before the UK's supreme court that it possesses state immunity from accusations that it deployed surveillance software on the computers of two dissidents during their stay in the UK capital.
Court Proceedings Background
The Gulf country has previously lost its sovereign immunity claim in the high court and court of appeal. Bringing the matter to the supreme court demonstrates the significance of this matter for the country's global standing.
If Bahrain succeed, the decision could have broader implications for how authoritarian states employ surveillance technology to track and potentially harass political dissidents living in the UK.
Central Issue of Supreme Court Hearing
The legal proceedings, starting this midweek, will concentrate on whether the two individuals have the standing to claim damages despite Bahrain's immunity claim, rather than determining 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 residing in London, causing emotional distress. The appellate court last autumn supported a high court ruling that the State Immunity Act 1978 does not provide Bahrain state protection against their allegations.
Article 5 of the legislation specifies that a country does not have protection from claims for physical or psychological harm resulting from an act or omission that took place in the UK.
The decision will also offer guidance regarding other surveillance allegations being handled by law firms on behalf of affected individuals.
Software Capabilities
Attorneys stated that "FinSpy software can gather vast amounts of data from infected devices, including capturing all keyboard inputs, voice calls, text communications, emails, calendar records, instant messaging, address books, browsing history, images, data collections, documents and recordings. It enables capture of real-time sound from the device's microphone and camera."
Legal Interpretation
The court of appeal determined that remote manipulation, from abroad, of a computer situated in the UK represented an act within the UK's jurisdiction. Although the cyber intrusion took place overseas, the consequence was that the national jurisdiction of the United Kingdom had suffered interference.
A foreign state does not have immunity for personal injury caused by an act in the United Kingdom, even if some activities take place overseas. The court also ruled that "psychological harm" as defined in the immunity legislation encompassed independent psychological damage.
Defense Position
The appellate decision noted that Bahrain rejected the claimants' allegations of compromising the activists' devices with spyware, but the high court judge "determined, on the basis of specialist testimony, that the plaintiffs had met the responsibility upon them of proving on the preponderance of evidence that their devices were infected by spyware by Bahraini representatives."
Claimants' Comments
Shehabi, a co-founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the progress to date of the court case regarding the cyber intrusion of my computer. It delivers a strong signal to overseas authorities who pursue their non-violent critics with various means including intruding into their personal affairs and equipment."
Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the nation, commented: "Our journey has now arrived at the highest court in the land. I have a responsibility to reveal what I experienced when I am convinced Bahrain hacked my computer. The impact has been profound – particularly for those who placed their trust 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 pursue their cross-border persecution on UK territory."
The two individuals have had their Bahraini citizenship withdrawn.
Attorney Commentary
A lead attorney commented: "This case raise essential issues about accountability for the deployment of invasive monitoring systems against political activists and human rights defenders. Our clients, and numerous additional people we represent, have anticipated a long time for resolution on these issues."