See, hear, speak no html

Flash movies, high graphics content and smart Java gimmicks – solicitors and their clients alike strive to differentiate their websites in the global market place that is the Internet through adoption of the latest technological façade. While a spate of litigation has given prominence to distance selling regulation compliance, this race of form over substance, this push for aesthetic dominance, could nevertheless prove to be a legal powder-keg as the rights of an estimated 8.5 million Britons are threatened.

Further provisions of the Disability Discrimination Act 1995 (“DDA”) in relation to physical access to buildings came into force at the end of last year, but while real-world access remains at the core of the DDA, the assimilation of the Internet into western culture places virtual world access at a close second place. Indeed, while some technical solutions, such as screen readers, paint the World Wide Web as an access solution, the design of many web pages means that the web remains yet another significant obstacle for the disabled community to face. But to what extent does the DDA empower the disabled community in the virtual world?

What is the issue?

Some estimates indicate that around 10% of the UK population have, in some way, difficulty in accessing materials on the web. Here are some examples of the difficulties which can be faced:

• users may be blind or partially sighted, or may at a particular time not be able fully to use their hands, eyes, ears;
• users may be deaf or have hearing difficulties;
• users’ mobility and/or co-ordination may be temporarily or permanently restricted in some way, e.g. they may not be able to use a keyboard or mouse;
• users may have learning difficulties or find it difficult to process some types of information easily or at all (or be seeking information on a website not written in their native tongue and using a translation tool).

The DDA and the web

Part III of the DDA specifically deals with “discrimination in relation to goods, facilities and services” – it is stated in section 19: “It is unlawful for a provider of services to discriminate against a disabled person”, and “it is irrelevant whether a service is provided on payment or without payment”. Examples of the provision of such services include “access to and use of information services”.

The DDA’s definition of “service provider” does not specifically include websites, although the degree of similarity between the online retailer and its conventional real world counterpart cannot be denied. Moreover, the specific inclusion of “information services” in section 19 gives rise to the argument that the World Wide Web in its entirety, a source of information from cinema times to parliamentary legislation, may fall within the ambit of the DDA. And since it is irrelevant whether the services in question are free, marketing or promotional websites may be caught within the scope of the accessibility obligations.

Reading the general legal framework of the DDA in conjunction with the Disability Discrimination Act Code of Practice (which was produced by the Disability Rights Commission (“the DRC”), and revised in 2002) would appear to clarify matters. The Code does not have the force of an Act of Parliament, but its provisions are admissible as evidence in court proceedings and must be taken into consideration where relevant.

In April 2003, the matter was put beyond doubt by an announcement by the DRC that it intended to conduct its first formal investigation by testing 1,000 UK based websites to assess their basic compliance with the Act. At the time of writing, it is anticipated that the DRC’s investigation will have been completed by the end of December, and that a report on its findings will be published in spring 2004. Once again, site accessibility will be a hot topic: without doubt, this report will prove to make interesting reading for those operating websites in the UK – and, lest we should forget, those who advise them.

SOCAG v Maguire

Cases in parallel jurisdictions also help bring the inclusion of the web in the duties imposed by the DDA into sharp relief. The most widely publicised case is that of SOCAG (Sydney Organising Committee for the Olympic Games v Maguire, which arose prior to the holding of the Sydney Olympics). Mr Maguire is partially sighted and (among other problems) encountered some difficulties in accessing the Committee’s official website and, as a consequence, argued he was unable to participate in the Olympics as a supporter. Ultimately, the Committee failed to comply with a court order which required that various technical steps were taken to make the site accessible. As a consequence, Mr Maguire was eventually awarded a sum of AUS$20,000. The Committee certainly didn’t do itself any favours by making the suggestion that Mr Maguire enlist the help of a sighted friend to help him navigate the website. The Maguire case is very likely to form a precedent in any future court action raised in the UK and therefore represents a salutary warning to website owners and operators.

What does this mean for IT lawyers?

Although it still cannot be said that there is a definite legal requirement under the DDA for websites to be provided in a form which is accessible to able bodied and disabled persons alike, given the increasing importance of web access in everyday life in tandem with the prominence given to web access in current government policy, solicitors can no longer afford to ignore the DDA when advising clients on e-commerce and other online legal matters. However, the vague demands of the DDA, such as the requirement that companies make “reasonable efforts” to improve their services, leave untouched the question as to how the DDA can be translated into practical advice for clients.

There are, in essence, three duties embodied in the DDA which require to be considered in relation to online activities – the duty not to refuse or deliberately not provide a service; the duty not to provide a lower standard of service to a disabled person, compared to that offered to an able bodied person; and the ostensibly ambiguous obligation to make “reasonable adjustments”.

Where a “service provider” fails to make reasonable adjustments or otherwise breaches the provisions of the DDA, a disabled person who suffers as a result may initiate a civil claim which, if successful, could result in damages being awarded against the organisation found to be in breach of the Act, together with a court order requiring alterations to the infringing website.

Practical help is at hand

The World Wide Web Consortium’s (“W3C’s”) Web Accessibility Initiative (“WAI”) provides a useful (global) resource for website developers regarding good practice in site design. We recommend that this resource be used by clients seeking to make their sites as accessible as possible, particularly given that adoption of the WAI by the Australian court in the Maguire case is likely to prove persuasive authority in the UK.

The WAI’s Guidelines (Web Content Accessibility Guidelines) seek to provide some design options and solutions. These guidelines address typical scenarios that may pose problems for users with certain disabilities. See www.w3.org/TR/WCAG10/ – the W3C Web Accessibility Guidelines, and www.w3.org/WAI/ – the WAI homepage.

Some design solutions are the use of style sheets, providing text equivalents of images and easy navigation, using contrasting colours and avoiding the use of frames and tables.

Above all, one should bear in mind that providing an alternative website for disabled users is not necessarily the best option – WAI guidance aims to promote universal access to websites to able bodied and disabled website users.

Conclusion

So far, there has been no UK case in relation to allegations that the poor design of a website amounted to discrimination under the DDA. But it can only be a matter of time before an organisation representing disabled persons chooses to stand behind an individual in bringing a case against a UK service provider on the grounds of poor web accessibility, and that seems to the author to be the next logical step following publication of the DRC’s report.

There are estimated to be over 8 million people in UK who suffer from some sort of disability: this represents significant spending power. So, not only is it unlawful to discriminate, but it is also against business sense. While the European Year of People with Disabilities may have ended, the importance of the disabled community should not be forgotten.

Iain Wisely, Morton Fraser, e-Business & IP team