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Bahrain is set to argue before the Britain's highest judicial body that it enjoys state immunity from accusations that it deployed spyware on the computers of two activists during their residence in the UK capital.

Court Proceedings Background

The Gulf country has been denied its immunity argument in the high court and appellate court. Bringing the matter to the highest court demonstrates the significance of this matter for the nation's international reputation.

If Bahrain succeed, the decision could have wider consequences for how authoritarian states employ digital spyware to track and possibly target opposition figures living in the UK.

Key Focus of Legal Proceedings

The legal proceedings, starting this midweek, will focus on whether the two men have the legal right to claim compensation despite Bahrain's immunity claim, rather than addressing whether compensation is warranted.

Allegations and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher spyware to infiltrate their computers while they were living in London, causing psychological harm. The court of appeal last October supported a previous court decision that the State Immunity Act 1978 does not provide Bahrain state protection against their claims.

Article 5 of the act specifies that a country does not have immunity from legal actions for physical or psychological harm caused by an act or omission that occurred in the United Kingdom.

The decision will also offer guidance regarding other surveillance allegations being handled by law firms on behalf of clients.

Technical Details

Attorneys stated that "FinSpy software can gather vast amounts of information from infected devices, including capturing all keyboard inputs, voice calls, text communications, electronic mail, calendar records, instant messaging, address books, browsing history, photos, databases, documents and videos. It enables capture of live audio from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that external control, from abroad, of a computer situated in the United Kingdom constituted an action within the British territory. Even if the hacking took place overseas, the consequence was that the territorial sovereignty of the UK had been violated.

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

Defense Position

The appeal court ruling stated that Bahrain rejected the claimants' allegations of compromising the activists' devices with surveillance software, but the high court judge "determined, on the basis of expert evidence, that the plaintiffs had met the responsibility upon them of proving on the preponderance of evidence that their devices were infected by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the progress to date of the court case regarding the cyber intrusion of my electronic device. It delivers a strong signal to overseas authorities who pursue their peaceful political opponents with various means including intruding into their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the country, stated: "This process has now reached the highest court in the country. I have a duty to reveal what I experienced when I am convinced Bahrain compromised my device. The effect has been devastating – 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 permitted to use state protection to pursue their cross-border persecution on British soil."

The two individuals have had their nationality withdrawn.

Legal Perspective

A lead attorney commented: "These proceedings 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 advocate for, have waited a long time for clarity on these matters."