Following recent regulatory investigations into the accessibility of individual operators' websites in both the UK and the US, this alert provides an overview of developments in the laws affecting website accessibility in those jurisdictions.
The internet has rapidly established itself as a vital social and commercial communications medium. However, with its increasing adoption and use, there have been growing concerns that large sections of society are being left behind - including those who, perhaps for economic reasons, simply lack access to the relevant technology and infrastructure. As many commentators note, the majority of the world's population has never sent an email.
Even in those countries where we have the privilege of widespread access to the internet, there are still substantial segments of the population who are at risk of being marginalized because of the way the web is being designed and built. These include users with hearing or sight-related disabilities, and those with restricted mobility. For them, the problem is often not access to the web, but its accessibility. Common problems include the inability to adjust font sizes for text displays, the lack of alternative audio and visual content (for example for text or sound files) and poor navigational structures, requiring multiple mouse-clicks (where, for instance, a keyboard short-cut would assist users with restricted mobility). Often, sites which could be rendered significantly more accessible simply through the expedient of making them compatible with assistive technologies (for example, text to speech engines for blind users) have not been adapted for such use.
As a result, millions of potential users are effectively prevented from using the internet on a daily basis.
Introduction - Legal Developments
The first widely-reported successful website accessibility action was brought in August 2000 by an Australian disabled website user, Bruce Maguire, against the Organising Committee of the Sydney Olympic Games. His complaint, made under Australia's disability discrimination legislation, was that the official Sydney Olympic Games website, which included the Paralympics, was inaccessible to disabled people. Australia's Human Rights and Equal Opportunities Commission upheld his complaint and awarded him A$20,000 in damages.
In the four years since the Maguire case, there have also been significant developments in the legal landscape affecting website accessibility for disabled users in both the UK and the US.
In the UK, the Disability Rights Commission ("DRC") confirmed in its March 2002 Code of Practice (the "Code") that businesses should provide "accessible websites" to disabled users. In April 2004, the DRC followed up with a formal investigation into website accessibility in the UK. [fn1] Following the investigation, which found that 81% of the 1,000 websites surveyed failed to meet the most basic accessibility requirements, the DRC's Chairman, Bert Massie, warned that the DRC would not hesitate to bring legal action against companies that failed to comply with their obligations under the legislation. "If necessary", he said "we will fund cases. If you are going to spend money in court you may as well spend it on your website." Since the DRC's website accessibility investigation, new obligations have also come into force [fn2] in the UK under Part III of The Disability Discrimination Act 1995 ("DDA"), requiring service providers to take reasonable steps to remove or adjust any physical feature which makes it impossible or unreasonably difficult for disabled users to make use of a service.
In the US, New York Attorney General Eliot Spitzer announced in August this year the successful conclusion of an investigation led by his office into the accessibility of the Ramada.com and Priceline.com websites, with the companies agreeing to pay approximately $80,000 in investigative costs and take immediate steps to improve their sites' accessibility.
The UK Position: The Disability Discrimination Act 1995
In summary, the DDA provides that:
"It is unlawful for a provider of services to discriminate against a disabled person:-
(a) in refusing to provide, or deliberately not providing, to the disabled person any service which he provides, or is prepared to provide, to members of the public;
(b) [in circumstances prescribed by the DDA that] make it impossible or unreasonably difficult for the disabled person to make use of any such service;
(c) in the standard of service which he provides to the disabled person or the manner in which he provides it to him; or
(d) in the terms on which he provides a service to the disabled person".
The DDA also provides that it is also unlawful for a service provider to discriminate against a disabled person by failing to comply with any duty imposed on it by section 21 (a duty 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 service offered by the provider.
Part III of the DDA gives disabled people important rights of access to everyday services that others take for granted. Duties under Part III came into force in three stages:
(a) Treating a disabled person less favourably because they are disabled has been unlawful since December 1996.
(b) Since October 1999, service providers have had to make reasonable adjustments to the way they deliver their services so that disabled people can use them.
(c) From 1 October 2004, service providers have been required to make reasonable adjustments to or remove any physical features that make it impossible or unreasonably difficult for disabled people to use them.
Currently, there is no reported case law in the UK regarding the applicability of the DDA to websites. However, the DRC's March 2002 Code of Practice, which was authorised by the then Secretary of State for Education and Employment, specifies that businesses should provide "accessible websites" to people with hearing or visual disabilities. Although the DRC's Code of Practice does not have the force of law, the UK courts will generally follow the DRC's lead, since they are required to take into account any part of the Code that appears to them relevant to any question arising in proceedings before them. This is salutary news for most UK companies, since recent surveys indicate that the majority of them are not yet compliant with the legislation. [fn3]
There are currently no prescribed standards for levels of disabled access required of UK websites. However, the Code indicates that the financial resources of an organisation will be among the factors that should be taken into consideration in determining what steps are "reasonable" for a website owner to take to ensure accessibility. As a result, a profitable multinational will probably be expected to devote more resources to providing accessible web services to disabled users than, for example, a small local charity.
While the Code does not set out specific website accessibility requirements, current industry consensus is that the best practice is to comply at least with a minimum accessibility level defined by the World Wide Web Consortium ("W3C"). The W3C has a Web Accessibility Initiative ("WAI") that includes the Web Content Accessibility Guidelines (the "Guidelines"). The Guidelines are intended not only to make pages more accessible to people with disabilities, but also have the benefit of making pages more accessible to individuals using different browsers and handheld or voice-based computers. The basic principles underlying the Guidelines are that content must be perceivable, interface elements in the content must be operable, content and controls must be understandable, and content must be robust enough to work with current and future technologies. A new version of the Guidelines (Version 2.0) is expected early next year, although a working draft is already available. The main developments are that the new Guidelines will cover a wider range of technologies and use wording that may be understood by a more varied audience. The new Guidelines (as set out in the July 2004 working draft) include requirements that:
Conformity with the Guidelines is graded "Single-A", "Double-A" and "Triple-A" with Triple-A equating to the highest level of accessibility.
In addition, the British Web Design and Marketing Association created the Usability and Accessibility Working Group in September 2003 as a specific initiative to formulate an Accessibility Accreditation Scheme for suppliers of web design services. [fn4] As part of the due diligence process, users of web design services may find it helpful to check whether a prospective supplier is accredited under this scheme.
The US Position: Section 508, the Americans with Disabilities Act, and Eliot Spitzer
Although there is consensus in the UK that the DDA applies to websites, the applicability of legislation to website accessibility has historically been less clear in the US.
In the public sector, one legislative provision - the 1998 amendment to Section 508 of the Rehabilitation Act of 1973 (generally referred to as "Section 508") - has had substantial impact, since it requires all federal agencies to ensure that their electronic and information technology is accessible to disabled people whenever those agencies develop, procure, maintain or use such technology. However, Section 508 does not impose a similar obligation on operators of websites in the private sector, although commentators have suggested that some private sector companies seeking government contracts may have raised their game in order to increase the chances of winning work.
In the private sector, meanwhile, Title III of the Americans with Disabilities Act ("ADA") provides that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." The ADA lists twelve categories of "places of public accommodation," which include various physical locations, but does not address "virtual" locations such as websites. In 2002, the US district court for the Southern District of Florida concluded in a case involving Southwest Airlines (the "Southwest Airlines Case") that the ADA was only intended to cover physical "places of public accommodation," and did not extend to "virtual" locations such as websites. [fn5]
However, this is not consistent with the position recently taken by New York State Attorney General, Eliot Spitzer. Following investigations conducted during 2003 and 2004, the Attorney General's Office initiated enforcement actions under the ADA and state law against the operators of the priceline.com and ramada.com websites for failing to provide sufficient accessibility to individuals with visual impairments. In line with a February 2000 Congressional Hearing which had concluded that the ADA applies to the internet, the New York Attorney General asserted that, by failing to ensure that their sites were accessible to the assistive technology used by the blind and visually impaired, the operators of the two websites "had not complied with the ADA, New York Executive Law or New York Civil Rights Law." The operators of the two websites subsequently reached a settlement in August 2004 with the Attorney General's Office and, although no admission of wrongdoing was made, each operator handed over approximately $40,000 in investigative costs and agreed to take measures to make their websites accessible to the visually impaired, in line with the then applicable WAI Guidelines.
Although many user groups and commentators welcomed the New York Attorney General's successful actions against the two website operators, the extent of the protection offered by US law to disabled users remains unclear. Since both the Ramada and Priceline actions were settled out of court, there remains no decided case law, for instance, that actually overturns the decision in the Southwest Airlines Case. Operators are therefore left without legal certainty as to whether the ADA applies to virtual locations such as websites and, if it does, whether its application is limited only to those sites that support access to physical "places of public accommodation" or to all websites in general, as in the UK. Other issues remain unclear as well. For example, the agreements reached with Ramada and Priceline only related to making the sites "accessible to the assistive technology used by the blind and visually impaired". This leaves unanswered the question of whether other disabled groups (for instance, users with mobility problems) can expect protection under US law, and if so, just how far that protection might extend. A further area in which the US regime also remains unclear is the extent to which website operators may be liable for third party content provided over their sites. This was an issue that was not dealt with uniformly in the two agreements reached by the New York Attorney General with Ramada and Priceline.
Website owners in the UK and the US now face increased risk of reputational damage and legal liability if they do not address website accessibility issues effectively. With no prescribed standards in place, it would be advisable to attain at least Single-A conformity with the W3C guidelines. In the UK, website owners may face legal action under Part 3 of the DDA and the threat of unlimited compensation payments if they fail to make websites accessible for people with disabilities. In the US, while there is currently less clarity on the extent of disabled users' legal rights, it appears increasingly likely that regulatory authorities and the courts will seek out opportunities to develop and strengthen those rights, and impose more stringent accessibility obligations on website owners.
Companies that engage web developers would be well-advised to satisfy themselves that the developers have the experience and skills necessary to ensure that the sites they design meet appropriate levels of accessibility in relevant jurisdictions. In turn, if clients insist on designs that fall below the minimum W3C or other relevant standards, web developers should address this in the development agreement to minimise the risk of liability for failure to meet relevant accessibility requirements.
Disability Discrimination Act (n.b. as published and unamended) http://www.legislation.hmso.gov.uk/acts/acts1995/1995050.htm The Code of Practice for section III of the DDA http://www.drc-gb.org/uploaded_files/documents/4008_223_Code%20of%20PracticePart3.pdf Disability Rights Commission Report http://www.drc-gb.org/publicationsandreports/report.asp World Wide Web Consortium Web Accessibility Initiative http://www.w3.org/WAI/
1: "The Web, Access and Inclusion for Disabled People" DRC 2004, see: http://www.drc-gb.org/publicationsandreports/2.pdf
3: See for example, "The Web, Access and Inclusion for Disabled People" DRC 2004, and digital design company Nomensa's FTSE 100 Website Accessibility Update, which concluded that only 37% of the UK's 100 leading companies achieved minimum levels of website accessibility, reported 2 June 2004 at http://networks.silicon.com/webwatch/0,39024667,39121045,00.htm
4: See http://www.ua-wg.org.