Compliance, Accessibility

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Compliance, Accessibility the LawThe Legal
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MediaCorp/Click-2-Learn Seminar Centre for Life,
Newcastle 16 December 2003

• Martin Sloan
• Trainee Solicitor
• martin.sloan_at_brodies.co.uk

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Outline of Presentation

• What is Web Accessibility?
• The legal argument under the DDA
• Maguire v SOCOG
• Education
• Employment
• Latest developments in the UK
• Summary and final thoughts
• Useful links

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What is Web Accessibility?

• Original concept of the Internet
• platform (ie hardware) independent
• universal (ie for all)
• method of sharing information irrespective of
  disability
• Erosion of these principles
• Proprietary technologies can be inaccessible
• eg Java, Flash, Shockwave, PDFs

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Web Accessibility Initiative

• World Wide Web Consortium (W3) Web Accessibility
  Initiative (WAI)
• Set of guidelines for the design of Web pages
  (Content) and browsers (User Agents)
• Designed to promote good design practice
• But low awareness
• Legal argument

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The Act and its Obligations

• Disability Discrimination Act 1995 (DDA)
• a universal, all embracing right of
  non-discrimination against disabled
  peopleapplicable to all providers of goods,
  facilities and services to the general public
• Minister for Social Security and Disabled People,
• Hansard, H.C. Standing Committee E col. 290

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The Act and its Obligations

• Part III introduced on 1 October 1999
• Code of Practice (the Code)
• fleshes out the Act
• provides guidance
• aims to avoid legal action
• not an authorative statement of the law
• latest version uses an airlines e-booking Web
  site as an example of a service

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Who is a Service Provider?

• Not defined in either the Act or the Code
• Non-exhaustive examples listed
• access to and use of information services
• drafted in pre-Internet era
• Act explicitly includes free services
• Part III does not generally apply to educational
  institutions (Part IV) but does apply to local
  authorities/public sector

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The American Approach

• Carparts Distribution Center Inc..
• It would seem irrational to conclude that
  persons who enter an office to purchase services
  are protected by the ADA, but persons who
  purchase the same services over the telephoneare
  not. Congress could not have intended such an
  absurd result
• Carparts Distribution v Automotive Wholesalers
  Association of New England Inc
• No. 93-1954 37 F.3d 12 1994 US App LEXIS 28319
• Analogous to the Web and e-commerce
• But - Southwest Airlines case

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Discrimination Defined

• s.20 A provider of services discriminates against
  a disabled person if
• for a reason which relates to the disabled
  persons disability, he treats him less
  favourably than he treats or would treat others
  to whom that reason does not apply and
• he cannot show that the treatment in question is
  justified

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Duties under the Act

• s.19(1) Service provider has a duty
• not to refuse to provide or deliberately not
  provide any service which he provides or is
  prepared to provide to the public
• to comply with any s.21 duty to make reasonable
  adjustments
• not to provide a lower standard or manner of
  service

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Refusal to Provide a Service

• Where a service provider has deliberately chosen
  not to make his site accessible
• Requires knowledge
• But in reality very few sites cannot be made
  accessible
• Where accessibility is deliberately ignored by
  the service provider

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Lower Standard of Service

• Analogy in the Code
• a bookshop which orders books for customers, but
  refuses to order a large print book for a
  visually impaired person
• Could apply in several situations
• supermarket home shopping service
• online current account offering advantageous
  interest rates

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Reasonable Adjustments

• s.21
• (1) where a provider of services has a practice,
  policy or procedure which makes it impossible or
  unreasonably difficult for disabled persons to
  make use of a serviceit is his duty to take such
  steps as it is reasonableto have to take in
  order to change that practice, policy or
  procedure so that it no longer has that effect.

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What is a reasonable adjustment?

• Reasonableness is an objective term
• Is it reasonable to provide an accessible Web
  site where it had previously been inaccessible?
• Main opposition is cost and work involved
• Question has been considered by a court in
  Australia

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Maguire v SOCOG

• Visually impaired computer user
• Action under the Commonwealth DDA
• Site was inaccessible
• no ALT attributes on images used for navigating
• index of Sports was inaccessible from the
  schedule page
• tables used in layout of results were inaccessible

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Maguire v SOCOG the findings

• Commission found that
• SOCOG was intending to offer a service to the
  public by creating the Website
• the site was inaccessible
• SOCOGs claims of unjustifiable hardship were
  rejected

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Unjustifiable hardship

• SOCOG argued fixing the site would cost Au2m
• Expert witnesses disputed this
• W3C Guidelines
• Evolutionary site
• Continuing duty to comply

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Relevance of Maguire v SOCOG

• Reference to WAI Guidelines
• first time the Guidelines have been referred to
  in a court of law
• gives an indication of the standard for
  accessibility expected by a court
• Strict interpretation of undue hardship
• Likely to followed by UK courts when presented
  with the issue

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Education

• Originally excluded from the DDA
• SEN and Disability Act 2001 introduced a new Part
  IV of the DDA
• Reasonable adjustments to student services -
  includes
• lectures
• course materials ? applies to Web/intranets
• examinations
• Part III relevant to interpreting Part IV

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Remedies

• Legislation gives civil remedies rather than
  criminal proceedings
• Specific implement
• Damages
• injury to feelings
• derivative economic loss

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Employment

• Employment dealt with under Part II of the DDA
• employers duty to make adjustments
• DDA does not just apply to customer-faced Web
  sites - may also apply to internal
  intranets/extranets used by employees in the
  course of employment
• Need to consider the accessibility of internal IT
  provision including hardware/software

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Current position in the UK

• Local authority Web sites
• DRC/City University London Formal Investigation
  into Web access
• first ever Formal Investigation by the DRC under
  its powers
• option to take enforcement action, but aim is to
  identify recurrent barriers to Web access
• RNIB are preparing a case
• Likely to focus on specific issues

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Summary

• Strong case for arguing that the DDA applies to
  the Web
• Test case likely in the near future
• Duty is evolving and continuous
• Successful defence unlikely

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Further Information

• Disability Rights Commission (DRC)
• http//www.drc-gb.org
• RNIB See It Right Campaign
• http//www.rnib.org.uk/digital/siraccess/
• W3C Web Accessibility Initiative
• http//www.w3.org/wai/
• UK Resources for Web Accessibility and the Law
• http//www.web-access.org.uk

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Compliance, Accessibility the LawThe Legal
View
Centre for Life, Newcastle 16 December 2003

• Martin Sloan
• Trainee Solicitor
• martin.sloan_at_brodies.co.uk