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Cøbra’s identity appeal takes aim at open justice

Business

Jordan Atkins

The principles of open and fair justice were on trial in the U.K. last week as Cøbra, the pseudonymous operator of the Bitcoin.org site, argued to overturn a court ruling which once again determined that he must reveal his identity before participating in legal proceedings.

Cøbra, who was successfully sued by Dr. Craig Wright for copyright infringement over his hosting of the Bitcoin white paper, argued that to prevent him from participating in proceedings without identifying himself would be ‘draconian.’

Dr. Wright’s lawyers argue, on the other hand, that it’s both obvious and a foundational principle of the justice system that a party must identify themselves in order to participate in legal proceedings. They argue that this simple fact is implicit throughout the U.K.’s civil procedure rules.

Indeed, if Cobra’s argument is accepted, it would be an aberration in a system which makes open justice central to its operation. There is a long history of U.K. authority—both in statute and common law—which stand for the idea that open justice is a foundational principle of any legal system in a democracy.

According to Lord Reed sitting on the Supreme Court in Re BBC (2015), the principle can be found in the earliest constitutional legislation of England, such as the Court of Session Act 1693 which mandates that the decision making of the then-judicial House of Lords be made with open doors.

Lord Justice Woolfe, sitting on the court of appeal in R v Legal Aid (1993), had this to say after reviewing the case law on the subject (emphasis added):

“This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.”

The crux of the issue is brought into sharp relief in Wright v Cøbra: there is an inherent unfairness if Dr. Wright, who has spoken extensively on his own preference to stay anonymous and the effects that being doxed as Satoshi Nakamoto had on him and his family, should face the full personal scrutiny of the media and the general public while his legal opponent—who has and continues to denigrate Dr. Wright in the public forum—can remain totally anonymous.

If open and fair justice is as foundational to the justice system as all that, how has Cøbra been able to argue—not once or twice, but three times now—that he should be able to participate in the justice system anonymously?

Wright v Cøbra: a history

These are all fairly elemental principles in the legal system. However, part of the reason that Cøbra has been allowed so much rope on the issue comes down to the somewhat quirky procedural history of the Wright v Cøbra case.

The case was originally brought by Dr. Wright in early 2021. In it, Dr. Wright accused Cøbra of violating his copyright in the Bitcoin white paper by hosting it on the Bitcoin.org site without his permission as its author.

Cøbra immediately went into PR overdrive, casting himself as a martyr who would give up his pseudonymity in order to defend the great Bitcoin white paper:

This turned out to be all talk, as when push came to shove Cøbra refused to participate in the proceedings, instead preferring to remain anonymous. As a result, the court awarded Dr. Wright summary judgment and confirmed his copyright in the Bitcoin white paper. Cøbra was forced to remove the white paper from his website and replace it with a notice telling visitors of the judgment.

As the victorious party, Dr. Wright is entitled to the payment of his legal costs by Cøbra as the losing party. However, Cøbra attempted to file points of dispute as to Dr. Wright’s claimed costs—still without revealing his identity. This caused another judicial detour (further growing Cøbra’s inevitable legal bill) where the court considered whether Cøbra could make post-judgment costs arguments without revealing himself: in November, the court again ruled that Cøbra was barred from participating in proceedings anonymously:

“I have concluded the reason there are no such cases is because the point is in fact a simply one. If a party is not prepared to name itself, then it cannot take part in the proceedings. Where a party has concerns about the publication of its identity, an application to anonymise its name and address can be made…. That is the extent to which a party can be involved in proceedings and limited their identification.”

Cøbra then appealed that ruling, necessitating yet another hearing last week where parties argued whether, having been barred from anonymously participating in the core case and the following costs proceedings, Cøbra should be allowed to participate in an appeal of the latter.

That the court would continually hear Cøbra’s argument on this point isn’t so surprising. The courts are reluctant to bar a party’s access to legal proceedings in any circumstance and so are eager to give Cøbra every opportunity to make a case to the contrary.

Cøbra, despite turning his nose up at the legal system at every phase of the case, is only too happy to be obliged.

Cøbra’s anonymity is convenient for Cøbra

Such is the contradiction within Cøbra: he apparently both resents having to participate in the legal system and cannot help but drag out its processes as long as possible.

This contradiction has a fairly simple explanation: Cøbra really just cares about himself, which means avoiding legal liability for his actions is priority number one. This means doing everything in his power to avoid revealing his identity, while simultaneously saying whatever he needs to say on social media to rally supporters to him.

You can see this in the earliest days of Wright v Cøbra, when Cobra tried his best to paint Dr. Wright’s case as an attack on ‘Bitcoin’:

His commitment to that angle lasted less than a month:

Same for when Dr. Wright was awarded default judgment against Cøbra:

Only for Cøbra to then begin re-engaging with the legal proceedings to drag the whole case out for another two years (and counting).

As if Cøbra’s pure disdain for the legal system wasn’t obvious enough, the Bitcoin.org operator has even gone as far as threatening one of Dr. Wright’s lawyers on Twitter, calling him a ‘stain on the British legal profession’ and that he would ‘face consequences.’

With outbursts like that, it’s no wonder Cøbra wants to stay anonymous.

It seems Cøbra quite enjoys the attention his online persona gets him—it’s only when time comes to stand by his statements in court that he doesn’t like being under the spotlight.

Next steps

With both sides having presented their arguments on Cøbra’s appeal, the next step is to await judgment. As Judge Rowley indicated, the law is fairly clear on the subject. However, preventing a party from participating in legal proceedings is a step the courts will take cautiously and Cøbra’s situation is a unique one, so even if the law and facts point only one way—as the court has repeatedly found in Cøbra’s case—the Judge is likely to be eager to take his time and may still ultimately leave the door open to further appeals.

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