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Bahrain is preparing to argue before the UK's supreme court that it possesses state immunity from allegations that it installed spyware on the devices of two activists during their stay in London.

Court Proceedings Context

Bahrain has been denied its immunity argument in the lower court and appellate court. Bringing the matter to the supreme court demonstrates the significance of this matter for the country's international reputation.

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

Key Focus of Supreme Court Hearing

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

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used Germany-produced FinFisher spyware to compromise their electronic devices while they were living in London, causing emotional distress. The court of appeal last October supported a high court ruling that the 1978 immunity legislation does not provide Bahrain state protection against their claims.

Article 5 of the act states that a country does not have immunity from legal actions for personal injury resulting from an act or omission that occurred in the United Kingdom.

The ruling will also offer guidance regarding additional spyware claims being pursued by legal teams on behalf of affected individuals.

Technical Details

Attorneys stated that "FinSpy software can gather vast amounts of data from infected devices, including recording every keystroke, telephone conversations, messages, electronic mail, calendar records, real-time chats, address books, internet activity, photos, data collections, files and recordings. It enables capture of real-time sound from the device's microphone and camera."

Legal Interpretation

The court of appeal determined that external control, 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 UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an act in the UK, although certain activities take place overseas. The court also determined that "personal injury" as defined in the state immunity act included independent psychological damage.

Defense Position

The appellate decision noted that Bahrain denied the accusers' claims of infecting the activists' devices with spyware, but the initial court justice "determined, on the based on expert evidence, that the plaintiffs had discharged the responsibility upon them of proving on the preponderance of evidence 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, 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 sends a strong signal to foreign governments who target their non-violent critics with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the country, commented: "This process has now arrived at the supreme judicial body in the country. I have a duty to expose what I endured when I believe Bahrain compromised my device. The impact has been profound – particularly for those who placed their trust in me, and for my friends and family."

"Repressive governments like Bahrain must be held accountable for destroying our lives. They cannot be permitted to hide behind state protection to pursue their transnational repression on UK territory."

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

A lead attorney stated: "This case present fundamental questions about accountability for the use of intrusive surveillance technology against political activists and members of civil society. Our clients, and numerous additional people we represent, have waited a long time for clarity on these issues."