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Bahrain is preparing to argue before the UK's supreme court that it enjoys sovereign immunity from allegations that it installed surveillance software on the computers of two activists during their stay in London.

Court Proceedings Background

The Gulf country has previously lost its immunity argument in both lower court and court of appeal. Bringing the matter to the highest court demonstrates the importance of this matter for the country's international reputation.

If Bahrain succeed, the ruling could have wider implications for how authoritarian governments utilize digital spyware to monitor and possibly target political dissidents residing in the UK.

Central Issue of Legal Proceedings

The supreme court hearing, starting this midweek, will concentrate on whether the two individuals have the legal right to seek compensation despite Bahrain's immunity claim, rather than addressing whether damages are applicable.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their computers while they were residing in London, causing psychological harm. The court of appeal last October supported a high court ruling that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.

Section 5 of the legislation specifies that a country does not have protection from claims for personal injury resulting from an action or inaction that took place in the United Kingdom.

The decision will also provide clarity regarding other surveillance allegations being pursued by legal teams on behalf of clients.

Software Capabilities

Attorneys stated that "The surveillance program can gather large quantities of data from infected devices, including recording every keystroke, telephone conversations, text communications, electronic mail, calendar records, real-time chats, address books, internet activity, photos, data collections, files and recordings. It allows capture of real-time sound from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that remote manipulation, from abroad, of a computer situated in the UK represented an action within the British territory. Although the cyber intrusion took place overseas, the consequence was that the territorial sovereignty of the United Kingdom had suffered interference.

A foreign state does not have immunity for personal injury caused by an act in the UK, although some activities occur overseas. The judicial body also determined that "psychological harm" as defined in the immunity legislation included independent psychological damage.

Defense Position

The appeal court ruling noted that Bahrain rejected the accusers' claims of compromising the dissidents' computers with surveillance software, but the initial court justice "found, on the basis of expert evidence, that the plaintiffs had met the responsibility upon them of demonstrating on the preponderance of evidence that their computers were infected by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, welcomed with the supreme court hearing, stating: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my computer. It sends a clear message to overseas authorities who pursue their non-violent critics with various means including intruding into their private lives and devices."

Mohammed, who fled Bahrain in 2006 after facing frequent detention within the country, stated: "This process has now arrived at the highest court in the country. I have a responsibility to reveal what I endured when I am convinced Bahrain hacked my computer. The impact has been devastating – especially for those who had confidence in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for destroying our lives. They cannot be allowed to use state protection to advance their cross-border persecution on UK territory."

The two individuals have had their nationality revoked.

Legal Perspective

A senior legal representative commented: "These proceedings raise essential issues about accountability for the use of invasive monitoring systems against civil society members and members of civil society. Our clients, and numerous additional people we represent, have anticipated a long time for resolution on these issues."