To say that sovereign overseas governments enjoy immunity from being sued in the UK is an incomplete statement of the law. The High Court powerfully made that point in a case concerning a foreign state’s alleged surreptitious surveillance of human rights and pro-democracy activists living in this country.
Two such activists alleged that agents of the state, probably operating from outside the UK, had hacked into their computers, infecting them with spyware. They lodged personal injury claims against the state in England, alleging that covert surveillance to which they were subjected amounted to harassment, giving rise to psychiatric injury. The state wholly denied their claims and applied for them to be summarily dismissed on the basis of state immunity.
Ruling on the matter, the Court noted that the concept of state immunity, as defined by Section 1(1) of the State Immunity Act 1978, is subject to important exceptions. In particular, under Section 5 of the Act, a foreign state is not immune to claims in the UK in respect of death or personal injury.
That exception would be engaged if the activists succeeded in showing that a single act or omission which was the more than minimal cause of death or personal injury took place in the UK. The Court found that infecting a computer located in the UK with spyware from abroad is an act done in the UK for the purposes of Section 5.
On a preliminary basis, the Court was satisfied that the activists had discharged the burden of showing, on the balance of probabilities, that their computers had been infected with spyware by the state’s agents. It acknowledged, however, that a different conclusion may be reached after a full trial of the claims.
Rejecting the state’s application, the Court noted that very cogent reasons would be required for construing the personal injury exception in Section 5 as being confined solely to bodily, as opposed to psychiatric, harm. The Court’s ruling opened the way for the activists to proceed further with their claims.