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The Bahraini government is preparing to argue before the UK's supreme court that it enjoys sovereign immunity from accusations that it deployed surveillance software on the computers of two activists during their residence in London.

Legal Battle Context

Bahrain has previously lost its sovereign immunity claim in the high court and court of appeal. Taking the matter to the highest court highlights the importance of this issue for the country's international reputation.

Should Bahrain prevail, the decision could have broader consequences for how authoritarian states employ digital spyware to track and potentially harass opposition figures living in the United Kingdom.

Central Issue of Legal Proceedings

The legal proceedings, starting this Wednesday, will concentrate on whether the two men have the legal right to claim compensation despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.

Allegations 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 living in London, causing psychological harm. The court of appeal last autumn supported a previous court decision that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.

Section 5 of the legislation states that a state does not have protection from legal actions for physical or psychological harm caused by an action or inaction that occurred in the UK.

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

Software Capabilities

Legal representatives stated that "The surveillance program can gather vast amounts of data from infected devices, including recording all keyboard inputs, voice calls, messages, electronic mail, calendar records, instant messaging, contacts lists, browsing history, images, data collections, files and videos. It enables capture of real-time sound from the equipment's audio input and camera."

Judicial Analysis

The appellate court found that external control, overseas, of a computer situated in the UK constituted an act within the British territory. Although the hacking took place overseas, the consequence was that the national jurisdiction of the United Kingdom had suffered interference.

A foreign state does not have immunity for personal injury resulting from an act in the United Kingdom, although some activities occur abroad. The court also determined that "psychological harm" as defined in the state immunity act encompassed independent psychological damage.

Defense Position

The appellate decision stated that Bahrain rejected the accusers' claims of infecting the dissidents' computers with spyware, but the high court judge "found, on the basis of expert evidence, that the plaintiffs had discharged the burden upon them of demonstrating on the preponderance of evidence that their devices were infected by spyware by Bahrain's servants or agents."

Plaintiffs' Statements

Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I'm satisfied with the progress to date of the legal proceedings regarding the hacking of my electronic device. It sends a strong signal to overseas authorities who target their non-violent critics with various means including violating their private lives and equipment."

Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the nation, stated: "Our journey has now reached the supreme judicial body in the country. I have a duty to expose what I experienced when I am convinced Bahrain hacked my computer. The impact has been devastating – particularly for those who had confidence in me, and for my loved ones."

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

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

A lead attorney stated: "This case raise essential issues about accountability for the deployment of intrusive surveillance technology against civil society members and members of civil society. Our clients, and many others we represent, have waited a considerable period for resolution on these issues."