Bahrain to Present Case at UK Highest Court Over Sovereign Immunity in Surveillance Claims
Bahrain is set to argue before the Britain's highest judicial body that it possesses state immunity from allegations that it installed surveillance software on the devices of two activists during their residence in the UK capital.
Legal Battle Context
The Gulf country has been denied its immunity argument in both high court and appellate court. Taking the case to the highest court demonstrates the importance of this matter for the nation's global standing.
If Bahrain succeed, the ruling could have broader consequences for how authoritarian governments employ digital spyware to monitor and potentially harass political dissidents residing in the United Kingdom.
Central Issue of Legal Proceedings
The legal proceedings, starting this midweek, will focus on whether the two men have the standing to claim damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.
Claims and Proof
Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher surveillance software to infiltrate their computers while they were residing in London, resulting in psychological harm. The appellate court last autumn supported a previous court decision that the 1978 immunity legislation does not provide Bahrain state protection against their claims.
Article 5 of the legislation specifies that a country does not have protection from legal actions for physical or psychological harm caused by an act or omission that took place in the UK.
The decision will also provide clarity regarding additional surveillance allegations being handled by law firms on behalf of affected individuals.
Software Capabilities
Attorneys claimed that "The surveillance program can collect large quantities of data from compromised equipment, including recording every keystroke, telephone conversations, text communications, electronic mail, scheduling information, real-time chats, contacts lists, internet activity, images, databases, documents and recordings. It enables recording of real-time sound from the device's microphone and camera."
Judicial Analysis
The appellate court found that remote manipulation, overseas, of a electronic device located in the United Kingdom constituted an act 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 personal injury resulting from an action in the UK, although some activities occur overseas. The court also ruled that "psychological harm" as interpreted in the state immunity act included standalone psychiatric injury.
Defense Position
The appellate decision stated that Bahrain denied the claimants' allegations of infecting the dissidents' computers with spyware, but the initial court justice "found, on the basis of specialist testimony, that the plaintiffs had discharged the responsibility upon them of proving on the balance of probabilities that their computers were compromised by malicious software by Bahrain's servants or agents."
Plaintiffs' Statements
Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the progress to date of the legal proceedings regarding the hacking of my computer. It sends a strong signal to foreign governments who pursue their peaceful political opponents with various means including intruding into their personal affairs and equipment."
Mohammed, who left Bahrain in 2006 after experiencing frequent detention within the country, commented: "This process has now reached the highest court in the country. I have a responsibility to reveal what I endured when I believe Bahrain compromised my computer. The impact has been devastating – particularly for those who placed their trust in me, and for my loved ones."
"Repressive governments like Bahrain must be held accountable for destroying our lives. They cannot be allowed to use diplomatic immunity to advance their transnational repression on British soil."
The two individuals have had their nationality withdrawn.
Attorney Commentary
A senior legal representative commented: "This case present fundamental questions about accountability for the use of invasive monitoring systems against civil society members and human rights defenders. Our represented individuals, and many others we represent, have anticipated a long time for clarity on these matters."
