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

Legal Battle Background

Bahrain has been denied its immunity argument in the high court and court of appeal. Bringing the case to the supreme court demonstrates the significance of this issue for the nation's global standing.

If Bahrain prevail, the decision could have wider consequences for how authoritarian governments employ digital spyware to monitor and possibly target opposition figures living in the UK.

Central Issue of Supreme Court Hearing

The supreme court hearing, scheduled to begin this midweek, will focus on whether the two men have the legal right to claim compensation despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their computers while they were living in London, resulting in psychological harm. The appellate court last autumn supported a previous court decision that the 1978 immunity legislation does not grant Bahrain state protection against their claims.

Section 5 of the act specifies that a state does not have protection from claims for personal injury resulting from an act or omission that took place in the United Kingdom.

The decision will also provide clarity regarding other spyware claims being pursued by law firms on behalf of clients.

Software Capabilities

Legal representatives claimed that "The surveillance program can collect vast amounts of data from infected devices, including recording all keyboard inputs, voice calls, messages, electronic mail, scheduling information, real-time chats, contacts lists, internet activity, photos, databases, files and videos. It enables capture of real-time sound from the device's microphone and visual recording device."

Judicial Analysis

The court of appeal found that remote manipulation, overseas, of a computer situated in the UK constituted an action within the British territory. Even if the hacking took place overseas, the consequence was that the national jurisdiction of the UK had been violated.

A overseas nation does not have immunity for psychological harm caused by an action in the UK, although certain activities occur overseas. The judicial body also ruled that "psychological harm" as interpreted in the state immunity act included independent psychological damage.

Bahrain's Stance

The appeal court ruling stated that Bahrain denied the accusers' claims of compromising the activists' devices with spyware, but the high court judge "determined, on the based on expert evidence, that the claimants had met the burden upon them of proving on the balance of probabilities that their devices were infected by spyware by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the outcome so far of the legal proceedings regarding the cyber intrusion of my electronic device. It sends a strong signal to foreign governments who target their peaceful political opponents with multiple methods including intruding into their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the nation, commented: "Our journey has now arrived at the highest court in the country. I have a duty to reveal what I endured when I believe Bahrain hacked my device. The effect has been devastating – particularly for those who placed their trust in me, and for my friends and family."

"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be allowed to hide behind state protection to advance their transnational repression on British soil."

Both men have had their nationality withdrawn.

Attorney Commentary

A senior legal representative commented: "These proceedings raise fundamental questions about responsibility for the use of intrusive surveillance technology against civil society members and human rights defenders. Our clients, and many others we advocate for, have anticipated a considerable period for resolution on these matters."