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High Court gives green light to a Pegasus spyware case being brought in London against the Kingdom of Saudi Arabia by a UK based dissident

The High Court has today ruled the KSA does not have immunity under the State Immunity Act 1978 in relation to a case brought against it by satirist and human rights activist Ghanem Al-Masarir for its alleged use of spyware to infiltrate his mobile phones.

In his legal case UK-resident Ghanem alleges that the Saudi regime infected his mobile phone with the spyware known as Pegasus, acquired from the Israeli tech company, NSO Group, which allowed them to access his microphone and camera to hear and record what he was doing. Ghanem was tipped off by an interdisciplinary laboratory based in North America, The Citizen Lab, that his software had been hacked into by the Saudi Government.

Ghanem, who is represented by law firm Leigh Day, is bringing a claim for the psychological damage resulting from the misuse of private information and harassment in relation to the spyware. He is also bringing a claim relating to a physical attack he suffered on 31 August 2018 outside Harrods which he believes was directed by the Saudi regime.

Ghanem was given permission to serve his case on the KSA in January 2020. However, at a hearing in June 2021 the court heard an application by the KSA for a declaration that it was immune under the State Immunity Act 1978 and to dismiss the claim on that basis.

Under the Act, section 5 allows claims to be brought in certain exceptional circumstances including where personal injury has been caused by the State in this country. The KSA argued that the section 5 exception did not extend to Ghanem’s case for several reasons.

In the judgment handed down today, Mr Justice Julian Knowles ruled each of the points raised by the KSA’s application in Ghanem’s favour. In summary:

  1. The section 5 exception applies to any act of whatever type done by a foreign state in the UK which causes personal injury, including those done in the exercise of the defendant’s sovereign authority.
  2. The act or omission causing the personal injury covered by section 5 does not have to have been committed in whole in the UK, it is enough that some substantial and effective act which cause the personal injury has been committed within the UK.
  3. The claimant has provided enough evidence to conclude, on the balance of probabilities, that the defendant is responsible for the persons responsible for the alleged spyware.
  4. The claimant has provided enough evidence to conclude, on the balance of probabilities, that the defendant is responsible for the persons responsible for the alleged assault.
  5. The defendant’s contention that the claimant’s case is of such a weak and/or speculative nature that it should be thrown out is dismissed.

Following the ruling the case will now proceed to a substantive trial of the issues in the High Court at a date yet to be set.

Leigh Day also represents several other individuals who claim that they have been unlawfully targeted with spyware by foreign governments while living in the UK. It is hoped that today’s ruling will make it easier for those cases to proceed to trial. These cases include a case brought by two Bahraini dissidents, who now live in the UK, against the Kingdom of Bahrain for the alleged use of FinFisher surveillance software on their computers.

Ghanem Al-Masarir said following the judgment:

“It is a huge relief to me that the judge has ruled in my favour and dismissed the Kingdom’s attempts to hide behind state immunity in my case. The impact of the assault and the targeting with spyware, which I believe was orchestrated by the Kingdom of Saudi Arabia, has had a profound effect on my life. I no longer feel safe and I am constantly looking over my shoulder. I no longer feel able to speak up for the oppressed Saudi people because I fear that any contact with people inside the Kingdom could put them in danger. I look forward to presenting my full case to the court in the hope that I can finally hold the Kingdom to account for the suffering I believe they have caused me.”

Ida Aduwa, associate solicitor at Leigh Day who represents Ghanem, added:

“The judge has made it very clear that Ghanem has provided enough evidence at this stage of the case that the section 5 exception in the State Immunity Act applies to his case. We are pleased that the Kingdom’s attempts to use it to throw out this case have been wholly unsuccessful. Today’s judgment sets a powerful precedent for other cases brought against foreign governments for the alleged use of spyware on individuals in the UK. I hope this judgment will serve as a beacon of hope to those individuals who have been targeted that foreign governments cannot necessarily hide behind state immunity in these types of cases.”

Martyn Day, senior partner at Leigh Day, said:

“It is disappointing that the British Government does so little to protect dissidents, like Ghanem, from spyware attacks. It seems clear that such attacks on people living in our country are becoming ever more common as the spyware software becomes more and more sophisticated. Whilst it is very good to know that NGOs like Citizens Lab and Amnesty International Tech are keeping an eye on the use of such software in this country, surely it is for our own security services to be undertaking that protective role.”

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