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Section 230 of the Communications Decency Act of 1996 (CDA) provides immunity for interactive computer service providers that merely publish information provided by another information content provider. Put another way, as long as the computer service provider is not deemed to be the information content provider (i.e. the one responsible for the user-generated content), the immunity under the CDA applies. However, CDA specifically holds that a computer service provider may be liable and not immune if that which is provided by the web host or other ISP makes it "responsible, in whole or in part, for the creation or development of" the offending conduct.

The opponents denied that there had been any such substantial publication of the words complained of, in other words, that there was no such presumption of substantial publication merely by the offending content being made available to the public through the website in the jurisdiction. The lawyers for the Claimants were convinced that the defendants had no real prospect of defending the issue at trial and applied for summary judgment regarding those aspects of the defence which contest that publication had taken place "within the jurisdiction".

The application for summary judgment failed and the judgment refused the request to remove the statement in the defence denying substantial publication.

However, as shown above by the CDA's limitation on immunity, participation in the creation or development of that user-generated content may subject the computer service provider to liability. The question, therefore, is: What is the role of the website operator?

Argument in favour of the Claimant

1. That the claimant only relies on the presumption of damage and that he has chosen not to sue the defendant in the US, Saudi Arabia or Switzerland, calling for a more cautious approach by the court.

2. That it is a misconception under English law to presume that because an item is available on the internet a substantial amount of readers have gained access to it.

3. It can be claimed that publication over the Internet has taken place if and only if the material is accessed and downloaded by a third party within the jurisdiction; and only at trial can the claimant assert that a jury would be perverse not to draw such inference.

4. That the issue of the extent of publication of the two items should be left to the jury to decide on the evidence.

Conclusion

A dispute existed between the two parties as to the difference between a presumption and an inference that the words of the items published on the internet were made available to a "substantial but unquantifiable" amount of readers in the UK jurisdiction. For many reasons, the court held that it cannot be immediately accepted under English law that a claimant may rely on a presumption of law that a substantial publication has taken place merely because an item has been published on the Internet.

Generally speaking, the more neutral the website, the more likely the website operator will be deemed a service provider rather than a content provider. However, questions still remain as to what particular requirements or other activity may cause the CDA's immunity to not apply

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