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The Bahraini government is set to claim before the Britain's highest judicial body that it possesses state immunity from accusations that it installed surveillance software on the computers of two activists during their stay in the UK capital.

Court Proceedings Background

Bahrain has been denied its sovereign immunity claim in the lower court and court of appeal. Taking the matter to the supreme court highlights the importance of this matter for the nation's international reputation.

If Bahrain succeed, the ruling could have broader consequences for how authoritarian states employ digital spyware to monitor and potentially harass opposition figures residing in the UK.

Key Focus of Legal Proceedings

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

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher spyware to compromise their electronic devices while they were living in London, causing emotional distress. The court of appeal last autumn supported a high court ruling that the 1978 immunity legislation does not grant Bahrain sovereign immunity against their claims.

Section 5 of the legislation states that a state does not have protection from claims for personal injury caused by an action or inaction that occurred in the UK.

The ruling will also provide clarity regarding additional spyware claims being pursued by law firms on behalf of affected individuals.

Software Capabilities

Legal representatives claimed that "FinSpy software can collect vast amounts of information from compromised equipment, including capturing every keystroke, telephone conversations, text communications, emails, calendar records, instant messaging, address books, internet activity, photos, databases, documents and videos. It enables capture of live audio from the device's microphone and visual recording device."

Legal Interpretation

The court of appeal found that external control, from abroad, of a electronic device situated in the United Kingdom represented an action within the British territory. Although the cyber intrusion took place overseas, the effect was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have protection for psychological harm caused by an act in the United Kingdom, even if certain acts take place overseas. The judicial body also ruled that "psychological harm" as defined in the immunity legislation included standalone psychiatric injury.

Defense Position

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

Claimants' Comments

Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I'm satisfied with the outcome so far of the legal proceedings regarding the hacking of my electronic device. It delivers a strong signal to overseas authorities who pursue their peaceful political opponents with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the nation, stated: "Our journey has now reached the highest court in the land. I have a duty to reveal what I experienced when I believe Bahrain compromised my computer. The effect has been profound – especially for those who had confidence in me, and for my loved ones."

"Abusive foreign states 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 British soil."

The two individuals have had their nationality revoked.

Legal Perspective

A lead attorney commented: "These proceedings present essential issues about accountability for the deployment of invasive monitoring systems against political activists and members of civil society. Our represented individuals, and many others we represent, have waited a considerable period for clarity on these matters."