Website accessibility - the legal issues and PAS 78
Website owners have a legal duty to make their sites accessible to disabled people. Alex Newson, a UK intellectual property & IT lawyer, comments on the law and on the Disability Rights Commission's new PAS 78 standard.
Introduction
It is eleven years since the UK Disability Discrimination Act 1995 ("DDA") became law. The legal duties imposed by the DDA have come into force gradually. Most businesses that I have spoken to seem to think that the obligations only began applying to websites in 2004. In fact, website owners have had these obligations since 1999. The ethical reasons and business case for accessible website design have been well-rehearsed and I'm not going to discuss these here.
Voluntary accessible technology standards have developed over the years. On 8 March 2006, PAS 78 was the latest set of standards to be added to the list. PAS 78 has been issued by the Disability Rights Commission ("DRC"), working in collaboration with the British Standards Institute. PAS 78 is the "Guide to good practice in commissioning accessible websites".
In this article, I'm going to discuss the DDA and where PAS 78 fits in. The intended audience of this article is website designers and developers but the message applies equally to website owners.
Legal duty to make websites accessible
The effect of the DDA is that website owners have a duty to ensure that it isn't "unreasonably difficult" for disabled people to access your website. If your website falls in this category, you're under a statutory duty to take reasonable steps to remove that difficulty.
I comment on the legal obligations below. I comments on the remedies given by the DDA, and the limitations of these remedies in the Appendix.
How far does this duty go?
The DDA sets out 2 limitations on the accessibility duty. You are not required to take steps that would fundamentally alter the nature of your service or the nature of your business. The DDA also states that you are not required to take steps that would mean that you are spending more than a "prescribed maximum" amount. As at the time of writing, the UK government has still not specified what this "prescribed maximum" is, making this restriction effectively redundant for the time being.
The fact that you have to take "reasonable steps" also limits the duty. What is "reasonable" is not fixed and depends on:
- The services you are providing;
- The size of your business and your resources;
- What affect the disability has on the individual disabled person.
Unlawful discrimination
The DDA, not surprisingly, also states that it's unlawful to discriminate against a disabled person. This can include, for example, refusing to provide, or deliberately not providing, a particular service via the internet.
How to comply with the DDA in your website designs
PAS 78 doesn't alter the legal position on website accessibility. Just like the existing standards, compliance with PAS 78 doesn't automatically mean compliance with the DDA. But PAS 78 is the latest addition to 'best practice' and, not surprisingly perhaps, my advice is that the best way to try and comply with the DDA is to follow current best practice. By doing so, you are maximising your chances of complying with the duties under the DDA because these standards try to go beyond the minimum statutory requirements.
Of course, there are numerous competing accessibility standards, so deciding which ones to follow can get confusing! I would recommend achieving compliance with at least level 2 of the WAI, arguably the most well-known and well-established standard. In the SOCOG case (see below: "Consequences of not complying with DDA"), the Australian Human Rights And Equal Opportunity Commission specifically referred to the WAI, giving support to the view that WAI is a safe standard to adopt.
PAS 78: just another standard?
PAS 78 does not try to be another technical standard. Rather than seek to rival WAI, PAS 78 expressly states that websites should comply with WAI. Existing website accessibility standards such as WAI focus on the technical measures that will make a website accessible whereas PAS 78 focuses on the process of making and maintaining accessible websites. The emphasis is on:
- Using website designers who are experienced in making accessible websites
- Considering the needs of users and how these will be achieved - rather than "one size fits all"
- Making website accessibility an important consideration in the maintenance lifecycle of websites
- Involving disabled users and experts on disabilities in the website creation and maintenance process
Also unlike the existing standards, PAS 78 places a real emphasis on addressing the needs of users with learning impairments. For example, it suggests that content should be simple and concise. Addressing these needs isn't something that a well-designed Content Management System will do alone. Automatic tools for checking website accessibility such as Bobby cannot detect whether a website is accessible to the those with learning impairments. Website designers and owners need to actively keep these users in mind and this is a point brought home by PAS 78.
Achieving compliance with PAS 78, and continuing to do so over the long term, is not going to be something that website owners will be able to do on their own. This means that website designers and consultants have a valuable role to play in helping businesses implement PAS 78.
Accessibility Policies?
One of the most interesting aspects of PAS 78 is the suggestion that websites should display accessibility policies on their websites. Such a policy should detail the aims of the website, and measures that should be, or are being, taken to address the needs of users. Website owners are directed to provide the accessibility policy to website designers so that this is referred to during the design and maintenance process.
Will PAS 78 lead to more accessible websites?
In the introduction to PAS 78, the DRC comments on its April 2004 report on website accessibility in the UK. In it the DRC reports finding that, of the websites reviewed, 81 percent did not comply with even WAI level 1. From this it's clear that despite the length of time for which website accessibility has been a legal duty in the UK, the message hasn't hit home with website owners. Another accessibility standard in itself isn't likely to change this, even one that comes at accessibility from a different angle. However, the implementation of PAS 78's recommendation to display accessibility policies on websites may help bring the issue of accessibility into the mainstream because users will see these policies, or at least links to them. This can only be welcomed by accessible website designers such as GAWDS members and, of course, disabled users.
Summary
- PAS 78 is the latest addition to the 'best practice' concept.
- Following best practice is the best way of complying with the DDA
- PAS 78 is not a technical standard like WAI, it's about the process of making and maintaining accessible websites
- Following WAI Level 2 (at least) remains the 'minimum' website owners and designers should be looking to achieve
This article was submitted to GAWDS by Alex Newson, a UK IP and IT lawyer at Freeth Cartwright LLP. If you'd like to discuss website accessibility issues under the DDA, please contact Alex on 0845 058 0759, alex.newson@freethcartwright.co.uk.
Appendix
Consequences of not complying with the DDA
There is the risk that website owners will see the duties imposed on them by the DDA as being just more "red-tape". If the incentive for website accessibility is the potentially large disabled persons market, what are the sanctions for not doing so?
- Bad publicity and damage to your reputation.
For example, in 2005 an airline which encourages customers to book online was criticised by the Royal National Institute for the Blind for failing to offer the same prices to disabled persons, who are required by the airline to confirm their booking over the telephone.
- Being sued by someone affected by "discrimination".
Under the DDA, the affected person can issue legal proceedings and claim damages for any losses they suffer, and injury to their feelings caused by the discrimination.
In Australia, a man brought an action against the Sydney Organizing Committee for the Olympic Games ("SOCOG"). The man was blind and uses a Braille display to browse websites. The man claimed that he could not access the SOCOG website to obtain up to date information about the Olympics. SOCOG was ruled by the Australian Human Rights And Equal Opportunity Commission to have discriminated against the man and was made to pay $20,000 damages.
So far, there have been no court actions for website related disability discrimination in the UK. The SOCOG case illustrates how costly an inaccessible website could be and I certainly hope that the UK Olympics organisers will be learning from this!
Are the penalties too weak for website owners to care?
The Disability Rights Commission ("DRC") was established by the government as a result of the DDA. The DRC doesn't have any legal powers to take action against organisations that do not comply with the DDA. Whilst the DRC funds a small number of private DDA legal actions each year (84 cases in 2002 - 2003), to my knowledge it has not funded any that concern inaccessible websites. In conclusion, whilst the DRC is a promoter of the DDA, it is not really an enforcer.
Legal actions are generally very expensive, time-consuming and stressful. Most individuals don't have the time or spare cash to sue the owners of an inaccessible website. Instead, I suspect that if a disabled person encounters an inaccessible website, they will simply go to a rival website.
Businesses take the UK Data Protection Act 1998 seriously because it has these type of enforcement powers. The Act's enforcer, the Information Commissioner, can take businesses to court for failure to comply with the Act. This can result in a criminal conviction and a fine of up to #5,000.
To make website owners take the DDA more seriously, I believe that it should be reformed so that it contains enforcement powers similar to those in the UK Data Protection Act 1998.. The DRC needs powers to formally investigate websites, on its own initiative or after complaints from the public, and take website owners to court for breach of the DDA.