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"The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect."
Tim Berners-Lee; W3C Director and Inventor of the World Wide Web

The Law

Since October 1999, service providers have been under a legal obligation to make reasonable adjustments to allow disabled people to access their services. This rule is found in Section 21 of the Disability Discrimination Act 1995 (c.50) (in Part 3 of the Act). Websites are considered a type of service for these purposes. This means that organisations which have their own website have to take all reasonable steps to make sure that the site is accessible by disabled people. This is the case whether the site is an e-commerce giant or a one page brochure and e-mail link.

The Act is complemented by a statutory Code of Practice, which specifically confirms the application of the legislation to websites (cf. para. 2.7) and explains and illustrates the law by reference to clear and helpful examples.

The requirement to make websites accessible to disabled people is not solely concerned with those who have a visual impairment. The Disability Discrimination Act applies to all disabled people, and Section 1 defines a disabled person as anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This definition is notoriously complex, to say nothing of contentious, but it is much wider than one might at first appreciate. It is estimated that one in seven people in Great Britain have a disability and that approximately one in ten people have some difficulty in accessing the internet. In addition to those with sensory impairments, people who have certain physical disabilities may have problems in using a mouse or keyboard to access online services, and those with learning difficulties may experience problems in understanding a website.

Websites for further and higher education institutions are covered under similar provisions in Part 4, Chapter 2 of the 1995 Act (as amended by the Special Educational Needs and Disability Act 2001). However, while schools’ websites are covered under the "education and associated services" provisions of Part 4, Chapter 1, the duties are less stringent and it is not clear to what extent schools will have to adapt their websites under this legislation. Having said that, the requirements of a school’s accessibility strategy (prepared in terms of the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002) should require that a school’s website is accessible as part of the requirement to improve communication with disabled pupils.

A failure to make a website accessible to disabled people may lead to legal action. A disabled person who is unable to access a website (or finds it unreasonably difficult to do so) may bring litigation under the Act to the Sheriff Court. Compensation is available where there has been financial loss or injury to feelings. Recent clarification on this point has been provided by Sheriff Principal MacPhail in the case of Purves v. Joydisc Ltd. which indicated that damages for injury to feelings in disability discrimination cases should be awarded at no less than 750 pounds. Of course, where a number of disabled users are unable to use a website, the potential total of damages may increase exponentially.

And it seems that there may be no shortage of potential defenders in such cases. Recent studies have discovered that a majority of major websites fail to comply with even basic standards of accessibility. Nomensa recently found fault with all but 11 of the websites maintained by the FTSE100 companies, and AbilityNet couldn’t turn up even one newspaper or airline site which was fully accessible. The Disability Rights Commission is currently undertaking its own research on 1,000 selected websites in the UK, and should be ready to report in April 2004. Potential litigants may also be able to get financial support to bring legal action from the DRC or Royal National Institute for Blind people.

Despite all this, somewhat surprisingly, there has been no litigation under the Disability Discrimination Act 1995 concerning websites. Internationally, the leading case in this field is a determination by the Human Rights and Equal Opportunities Commission in Australia concerning a complaint by a Bruce Maguire against the website set up by the Sydney Organising Committee for the Olympic Games. Having already brought a successful case against the organising committee for their refusal to provide ticket books in Braille, Mr. Maguire challenged their ludicrously inaccessible website (www.olympics.com).

The committee (again) argued that it would be too expensive to alter the many thousands of pages on the site to make them accessible, but this argument was rejected and they were ordered to make the appropriate changes to the website. Mr. Maguire was also awarded a total of 20,000 Australian Dollars in respect of both complaints. The case is an interesting one which is likely to be influential in any forthcoming UK litigation because the Australian Disability Discrimination Act 1992 is in similar terms to its British counterpart. Tellingly, the website’s lack of accessibility was measured by reference to the international standards suggested by W3C’s Web Content Accessibility Guidelines. It is thought that these (evolving) standards will be adopted by courts in Britain as well.

Web References

Technical Standards

As mentioned earlier, the principal standard for accessibility is that laid out in the W3C’s Guidelines. As part of their Web Accessibility Initiative (or WAI), a proposed second draft of the Guidelines are currently under consideration.

The guidelines set down three levels of accessibility, designated as A, AA and AAA, with AAA being the gold standard of accessibility. It is generally accepted that compliance with level A is necessary in order to meet the legal requirements of the Disability Discrimination Act 1995. The Guidelines describe level A (also known as priority 1) as being a checkpoint which web content developers must satisfy. Otherwise, one or more groups will find it impossible to access the information on the website.

The Accessibility Guidelines set down a list of criteria for each level, and compliance with each criterion will ensure that the website it is applied to is more accessible to certain categories of web surfer. Key issues addressed include:

For disabled people who are unable to make use of a computer mouse, one feature which can be particularly helpful is access keys, whereby the user can jump between different sections of a website by way of specified key strokes. This is not specifically covered in the W3C Guidelines and, in fact, the main standard in force here is the UK Government access keys system, intended primarily for internal use. Similarly, the United States’ Government are driving forward levels of accessibility through its own "Section 508" standards.

Having said that, Government sites are not always models of accessibility. Indeed, the Hutton Inquiry website (in its initial stages) was notably inaccessible (due to use of frames, cookies and javascript) and this prompted one web user to create an alternative, more accessible version of the website, to add to his already much used accessible versions of the Odeon cinema website and railway live departure board sites. These sites are not only more accessible, but also often much easier to use than the original sites, especially for those of us with dial-up modems. This only serves to underline not only the ease with which such sites can be made more accessible, but also the wider benefits of doing so.

Web References

Iain Nisbet This article first appeared in SCOLAG Legal Journal in March 2004. It was written by Iain Nisbet of Govan Law Centre.

Please read our disclaimer. With thanks to Struan Robertson of Out-Law; Matthew Somerville (www.dracos.co.uk) and Lynn Welsh of the Disability Rights Commission for their helpful comments on this article.


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