Bahrain has appealed a high court ruling in a case brought by two British-Bahraini dissidents who alleged that Bahrain used spyware, arguing that the country should have sovereign immunity.
Bahraini opposition leader Said Shehabi and pro-democracy activist and photojournalist Mousa Mohammed claim that their computers were infected with surveillance software known as “FinSpy” in September 2011.
The software can log all keystrokes, voice calls, emails, browsing history, as well as record live audio from the device’s microphone and camera.
The men were infected several months after anti-government protests began in Saudi Arabia and through contact with other activists, journalists and political prisoners, but they believe the infections were “perpetrated, ordered, authorized or caused” by the government or its agents.
In February last year, the High Court ruled that it had jurisdiction to hear the suit.
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The ruling comes months after the first ever spyware-foreign court ruling in a British court, when the High Court ruled that the case of Saudi dissident Ghanem al-Masalil, who claims Saudi Arabia installed spyware on his phone, can go ahead.
In the UK, states are generally immune from most lawsuits under the State Immunity Act of 1978, which was enacted before spyware existed.
But lawyers representing Mr Shehabi and Mr Mohammed argued that their case was an exception, arguing that the acts allegedly causing harm to their clients took place in the UK.
Conduct and Injury
The case reached the Court of Appeal this week, with lawyers representing Saudi Arabia reiterating their argument that sovereign immunity should apply.
Professor Dan Saloussi, representing Bahrain, told the court a distinction must be made between where an act was performed or commissioned and the effect of that act.
Mr Sarussi gave the example of aggressive and threatening phone calls made by an Australian Government Minister to an individual in the UK.
“The Australian minister made a telephone call and when the call was answered he spoke into a telephone in Australia and his voice was transmitted over the cable which caused the injury,” he told the court.
“Transmission of audio over telephone cables does not change the location from which the minister is speaking.”
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He added: “There should be no confusion between the act and the damage and the impact of the act.”
Ida Aduwa, a lawyer at Leigh Day who is representing Shehabi and Mohammed, said she expected the Court of Appeal to uphold the High Court’s decision.
“There are numerous cases in the UK of politicians, lawyers, journalists, human rights activists and dissidents being targeted by foreign governments as a result of their work,” she said.
“Individuals must be empowered to take legal action against offending countries and foreign countries must not be allowed to use sovereign immunity to get away with taking legal action in the courts of England and Wales in cases like this.”
Middle East Eye has contacted the Bahraini Embassy in London for comment.
The appeal hearing will conclude on Tuesday and a verdict is expected to be handed down after October 1.
