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Bahrain is set to argue before the Britain's highest judicial body that it enjoys state immunity from allegations that it deployed spyware on the devices of two dissidents during their stay in London.

Court Proceedings Background

The Gulf country has been denied its sovereign immunity claim in the high court and appellate court. Bringing the case to the supreme court highlights the importance of this matter for the nation's international reputation.

If Bahrain prevail, the decision could have wider consequences for how authoritarian states utilize digital spyware to monitor and possibly target political dissidents residing in the United Kingdom.

Key Focus of Supreme Court Hearing

The supreme court hearing, starting this midweek, will concentrate on whether the two men have the standing to seek damages despite Bahrain's immunity claim, rather than determining whether damages are applicable.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher surveillance software to compromise 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 state protection against their claims.

Section 5 of the act specifies that a state does not have immunity from claims for physical or psychological harm resulting from an action or inaction that took place in the United Kingdom.

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

Technical Details

Legal representatives claimed that "The surveillance program can gather vast amounts of data from compromised equipment, including capturing all keyboard inputs, telephone conversations, messages, electronic mail, scheduling information, real-time chats, contacts lists, browsing history, images, data collections, documents and videos. It allows capture of real-time sound from the device's microphone and camera."

Judicial Analysis

The court of appeal determined that external control, from abroad, of a computer situated in the UK represented an action within the UK's jurisdiction. Even if the cyber intrusion took place overseas, the consequence was that the territorial sovereignty of the United Kingdom had been violated.

A foreign state does not have immunity for personal injury resulting from an action in the United Kingdom, even if certain activities occur abroad. The judicial body also determined that "psychological harm" as interpreted in the immunity legislation included independent psychological damage.

Defense Position

The appeal court ruling noted that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "determined, on the basis of expert evidence, that the plaintiffs had discharged the burden upon them of demonstrating on the balance of probabilities that their computers were compromised by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a founder of the dissident party al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I am pleased with the outcome so far of the legal proceedings regarding the cyber intrusion of my computer. It delivers a clear message to foreign governments who target their non-violent critics with various means including violating their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after facing repeated arrests within the country, commented: "This process has now arrived at the supreme judicial body in the land. I have a responsibility to reveal what I endured when I am convinced Bahrain compromised my device. The effect has been profound – especially for those who placed their trust in me, and for my friends and family."

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

The two individuals have had their Bahraini citizenship revoked.

Attorney Commentary

A lead attorney commented: "This case raise essential issues about responsibility for the deployment of invasive monitoring systems against civil society members and human rights defenders. Our clients, and numerous additional people we represent, have anticipated a considerable period for resolution on these matters."