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The Bahraini government is preparing to claim before the UK's supreme court that it enjoys state immunity from accusations that it deployed surveillance software on the computers of two activists during their stay in the UK capital.

Court Proceedings Context

Bahrain has previously lost its immunity argument in both lower court and appellate court. Taking the matter to the highest court highlights the importance of this issue for the country's international reputation.

Should Bahrain prevail, the ruling could have broader consequences for how authoritarian governments employ surveillance technology to monitor and potentially harass political dissidents living in the UK.

Key Focus of Supreme Court Hearing

The supreme court hearing, starting this Wednesday, will concentrate on whether the two men have the standing to claim damages despite Bahrain's immunity claim, rather than determining whether compensation is warranted.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used German-made FinFisher spyware to compromise their electronic devices while they were residing in London, resulting in psychological harm. The court of appeal last October supported a high court ruling that the 1978 immunity legislation does not grant Bahrain state protection against their claims.

Article 5 of the act states that a country does not have immunity from legal actions for physical or psychological harm resulting from an action or inaction that took place in the UK.

The decision will also offer guidance regarding additional surveillance allegations being pursued by law firms on behalf of affected individuals.

Software Capabilities

Legal representatives claimed that "FinSpy software can gather vast amounts of data from infected devices, including recording all keyboard inputs, voice calls, messages, emails, scheduling information, real-time chats, contacts lists, browsing history, photos, databases, files and recordings. It allows capture of real-time sound from the device's microphone and camera."

Judicial Analysis

The appellate court determined that external control, from abroad, of a computer situated in the United Kingdom represented an act within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the effect was that the national jurisdiction of the UK had been violated.

A foreign state does not have immunity for psychological harm caused by an action in the UK, even if some activities occur abroad. The court also ruled that "personal injury" as interpreted in the immunity legislation encompassed independent psychological damage.

Defense Position

The appellate decision stated that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "found, on the basis of specialist testimony, that the plaintiffs had met the responsibility upon them of demonstrating on the balance of probabilities that their devices were infected by malicious software by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the progress to date of the court case regarding the cyber intrusion of my electronic device. It delivers 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 experiencing frequent detention within the country, stated: "This process has now arrived at the highest court in the land. I have a duty to reveal what I endured when I am convinced Bahrain compromised my computer. The impact 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 permitted to use diplomatic immunity to advance their cross-border persecution on British soil."

Both men have had their nationality 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 long time for clarity on these matters."