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Web Accessibility and the Disability Discrimination Act

by Martin Sloan, published 10 January 2002

In recent years concern has been expressed that the Internet is becoming more and more inaccessible to the disabled community. This is in part due to failures on the part of Web site designers to correctly follow HTML guidelines and an increased wish to use proprietary technologies such as Flash movies and Java without providing accessible alternative versions.

Whilst initial attempts to improve standards by the World Wide Web Consortium (W3C) through their Web Accessibility Initiative and accompanying guidelines have not proved overly successful, recent legislation in the UK, combined with these guidelines and a groundbreaking Australian case may do so.

In October 1999, Part III of the Disability Discrimination Act 1995 came into effect. This introduced a series of obligations or duties on service providers:

Not to refuse to provide, or deliberately not provide a service to a disabled person which the service provider provides, or is prepared to provide to members of the public (s.19(1)(a)
Not to provide a lower standard or manner of service to a disabled person (s.19(1)(c))
To make 'reasonable adjustments' in circumstances in which the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to make use of any such service(s.19(1)(b))

Although operators of Web sites are not specifically included within the definition of a 'service provider', it is beyond doubt that they are potentially liable under the Act. It is impossible to reasonably differentiate between a conventional retailer and one who is based on line, indeed they are often the same. Further, as 'Information Services' are specifically included (s.19(3)(c)), it is arguable that all Web sites are liable due to Internet being just that - an extremely large and varied information service. Whether rail timetables, a promotional site for a fashion chain or a government records archive, these are all sources of information. Whether the site is free to access or charged for is irrelevant.

The duty not to refuse or deliberately not provide a service could apply in a case where a service provider has deliberately chosen not to integrate accessibility into his Web site. This might include where a Flash movie is used, but there is no option for a user with a screen reader to skip it. This section is limited in its application, as knowledge is required, although there is a duty to make reasonable inquiries in the Code of Practice that accompanies the Act.

The second duty to be considered is that of 'Standard of service'. Here a service provider must not provide a lower standard of service to a disabled person, compared to that offered to an able-bodied person. Thus, where a retailer offers a e-commerce facility in addition to its high street shop, if the Web site is inaccessible then the disabled person will be unable to enjoy the convenience of home shopping and will thus be subject to a lower standard of service.

The third and most interesting duty is that of 'reasonable adjustments'. The issue of whether converting an inaccessible Web site to an accessible Web site was a reasonable adjustment to make was answered in Australia in by the case of Maguire v SOCOG. Here the Australian Human Rights Commission found in favour of the complainant, Mr Maguire, that the Sydney Olympics Organising Committee had breached the corresponding Australian legislation by providing an inaccessible Web site. It also rejected SOCOG's claims that introducing accessibility to the site would be an unreasonable burden in terms of cost and manpower, citing the W3C's WAI Guidelines in the process (the first time they have been mentioned in a court of law) and the complainant's expert witnesses, who said that compliance costs would be marginal.

Although Australian cases are not regarded as authority in by the courts in the UK, there is no doubt that they can be considered persuasive. This is especially so in areas where foreign legislation is similar to that in the UK (as is the case with disability legislation) and when dealing with problems raised by new technology. As such, it is reasonable to expect that if and when an action is brought against a service provider in the UK that the courts will follow the lead set in SOCOG and expect service providers to comply with the W3C guidelines and provide an accessible site.

Therefore, service providers would be well advised to follow the advice of the Code of Practice, which obliges service providers to continually review their duties and take into account 'technological developments [which] may provide new or better solutions to the problems of inaccessible services' (Para 4.9). This obligation is likely to be read as saying that even if a Web site was designed before the introduction of the WAI guidelines, that they should still be adhered to as they are a new 'standard'.

Any provider who is found by a court to have breached the Act will, in addition to legal costs, have to rectify the problems and pay damages to the pursuer, which in the SOCOG case was Au $20,000. In addition to this, there could be a far higher price to pay, that cannot be quantified. The defender of the test case is likely to be a large blue chip company with a sizeable amount of goodwill amongst the general public. If such a company were to lose a case then the resultant loss of goodwill caused by negative media coverage could be huge. The fact that companies such as Tesco, Standard Life Investments and the Royal Mail have recently created accessible versions of their Web sites proves that businesses are slowly awakening to the issue of accessibility and the consequences of failing to comply. As more businesses follow this lead, the ones who do not merely risk falling further themselves.

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Web Accessibility and the Disability Discrimination Act

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