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Bahrain is set to argue before the UK's supreme court that it possesses sovereign immunity from allegations that it installed surveillance software on the devices of two dissidents during their residence in the UK capital.

Court Proceedings Context

The Gulf country has previously lost its immunity argument in both lower court and appellate court. Bringing the case to the highest court highlights the significance of this matter for the country's global standing.

Should Bahrain prevail, the decision could have wider implications for how authoritarian states employ surveillance technology to track and potentially harass opposition figures living in the UK.

Central Issue of Supreme Court Hearing

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

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher surveillance software to infiltrate their electronic devices while they were living in London, causing emotional distress. The appellate court last autumn upheld a high court ruling that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.

Article 5 of the act states 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 United Kingdom.

The ruling will also provide clarity regarding other spyware claims being handled by legal teams on behalf of affected individuals.

Software Capabilities

Legal representatives stated that "The surveillance program can gather large quantities of information from compromised equipment, including recording every keystroke, telephone conversations, text communications, emails, calendar records, instant messaging, address books, browsing history, photos, data collections, documents and recordings. It allows recording of real-time sound from the device's microphone and visual recording device."

Judicial Analysis

The appellate court found that remote manipulation, overseas, of a electronic device located in the UK constituted an action within the British territory. Although the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the United Kingdom had suffered interference.

A foreign state does not have protection for personal injury caused by an action in the UK, even if certain acts take place abroad. The court also determined that "psychological harm" as interpreted in the state immunity act included independent psychological damage.

Bahrain's Stance

The appeal court ruling stated that Bahrain rejected the accusers' claims of compromising the dissidents' computers with surveillance software, but the high court judge "found, on the basis of specialist testimony, that the plaintiffs had met the burden upon them of demonstrating on the preponderance of evidence that their computers were compromised by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, welcomed with the supreme court hearing, stating: "I'm satisfied with the outcome so far of the court case regarding the hacking of my electronic device. It delivers a clear message to foreign governments who pursue their peaceful political opponents with multiple methods including violating their personal affairs and equipment."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, commented: "This process has now reached the highest court in the land. I have a duty to reveal what I endured when I am convinced Bahrain compromised my device. The impact has been devastating – particularly for those who had confidence in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to advance their transnational repression on UK territory."

Both men have had their nationality withdrawn.

Attorney Commentary

A lead attorney commented: "This case present fundamental questions about responsibility for the deployment of invasive monitoring systems against political activists and members of civil society. Our represented individuals, and many others we represent, have anticipated a considerable period for clarity on these matters."