Stephen Mason

Web site design and the Disability Discrimination Act 1995

by Stephen Mason and Catherine Casserley

This article was first published by Computer Law and Security Report Volume 21 Number 4 2005 298 - 309 with Catherine Casserley, Legal Officer, Disability Rights Commission

Copyright in this article is vested in the authors, Stephen Mason and Catherine Casserley, and the authors have asserted their rights under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this Work.

The authors grant you a licence to download and print copies of this article PROVIDED THAT you (a) retain the copyright notices contained at the beginning and end of the article in its entirety, (b) clearly identify this article as being written by the authors in electronic and printed versions and (c) only use it for your private use.

“You know, the internet is a wonderful thing for the disabled.  You should be proud of your achievement in making the life of the disabled so much better.”

Rabbi Lionel Blue, OBE at the Annual Dinner of The British Computer Society held on 12 November, 2001 [This is the author’s recollection of the actual words used by Rabbi Lionel Blue]

This article has been brought up-to-date by altering the text in the light of the revised Code issued by the Disability Rights Commission. The reader is to note that little has altered in respect of good web site design since the publication of the first version of this article in 2001. This article may have been up-dated, the problems remain the same.

The internet has been hailed by many with a technical background as a truly ground-breaking achievement. In addition, some commentators have remarked that human beings will alter the way they live as a direct result of the new technology. Such extravagant claims have been made about every form of new technology, from the invention of the telegraph, the coming of the railways and the advent of the aeroplane. Whilst it is true that the introduction of new technology does affect the way we live to a certain extent, it rarely lives up to the wilder claims made for it by its more enthusiastic devotees. The web makes a difference to the life of an able bodied person insofar as they choose to use the facilities or not. An able bodied person can use the web to correspond, seek information and, if they wish, buy and sell goods and services.

For a disabled person however, the internet can make a significant difference to their life. To this end, the aim of the government to enable as many people as possible to use the internet is to be welcomed. In some instances, the internet enables many people with differing degrees of disability to enrich their lives to a degree that no amount of extra home help could possibly achieve. For instance, software is capable of enabling blind and partially sighted people to listen to what is written on a web site. People with poor sight can change the size of the font on a page (just as any able bodied person can). If you are colour blind, you can, to a certain extent, alter the colour scheme on a web site. If you are blind or partially sighted, you no longer have to telephone the shop to book an appointment to go shopping. Instead of taking a day out to do the weekly shop, you can sit down in front of a screen and order goods online and have them delivered at some stage in the future. Gone can be the days where shopping for disabled people is an excruciating experience where, for instance, the supermarket provides a member of staff who is a vegetarian to pick goods for a meat eater. For the first time, many blind and partially sighted people can take advantage of the up-to-the-minute news and sports results that are now available on-line. In addition, the inclusion of railway and bus timetables in web sites enable blind and partially sighted people to be more confident when they travel, and to make ticket reservations independently and easily.

The problem with web site design

However, many web sites that operate on the internet have not been designed with the disabled user in mind. There are a range of problems that cause users with a disability to move away from popular web sites to look for a site that has made an effort to accommodate people with disabilities. Problems can include text and colour schemes that are fixed, which means neither the text or the colour scheme can be altered by the viewer on their screen. Other examples include images that have not been provided with a description of the image in text for blind and partially sighted people, and web sites that rely on new technologies that are not available to all users.

The law

Politicians have provided a remedy for the lack of consideration for disabled users, namely the Disability Discrimination Act 1995 (“the Act”). The Act has been implemented in stages, and the crucial date for any organization with a web site was 1 October 1999, when sections 21(1), (2)(d), (4), (6) and (10) were brought into force by The Disability Discrimination Act 1995 (Commencement Order No 6) Order 1999 SI 1999 No 1190 (c. 33). Sections 21(3) and (5) were brought into force on 26 April 1999 by the same statutory instrument.

The first Court of Appeal case to consider the goods and services provisions of the Act has considered the overall principles of this part of the Act. Roads v Central Trains Limited [2004] EWCA Civ 1541 concerned Mr Roads, who is disabled and dependent upon an electric wheelchair for mobility, and who had difficulty in gaining  access to one of the platforms at Thetford railway station. He brought a claim alleging breach of the Disability Discrimination Act. The claim was dismissed at first instance on the basis that it was not reasonable for the respondent to provide him with an accessible taxi to take him to the platform he required. Mr Roads appealed to the Court of Appeal, which allowed the appeal and held that there had been discrimination. Whilst the claim was predicated upon very particular facts (for example, the respondent had stated that cost was not an issue in this case) the Court considered the reasonable adjustment provisions of the Act, and emphasised its inclusive aims. Lord Justice Sedley said at paragraph 13, “[This is because] the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore [2002] Fam 1, §105: ‘to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large’. He went on to say, at paragraph 30, ‘[T]he policy of the [1995] Act is not a minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public”. This approach was followed in the case of Ross v Ryanair Ltd and Stansted Airport Ltd [2004] EWCA Civ 1751 in which it was held to be unlawful to charge for the provision of a wheelchair at Stansted airport to transport the claimant to the departure point for his aeroplane.

Before looking at the provisions of section 21, it may be pertinent to remind the reader that under the provisions of section 19, 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 failing to comply with any duty imposed on him by section 21 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;

(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.

Section 19(3) goes on to provide examples of the services which section 20 and 21 applies. Sub-section (b) applies to “access to and use of means of communications” and sub-section (c) applies to “access to and use of information services”. Both of these sub-sections clearly apply to the design and functioning of a web site on the internet.

To accompany the Act, there is also a Code of Practice Access to Goods and Facilities and Premises, a revised edition issued by the Disability Rights Commission in 2002. The Code is admissible as evidence in accordance with section 53(5) of the Act, and section 53(6) provides that where any provision of the Code appears to be relevant to any question arising in any proceedings under the Act, the tribunal or court must take it into account in determining the question. The revised Code contains the following illustration from paragraph 2.17:

“An airline company provides a flight reservation and booking service to the public on its website. This is a provision of a service and is subject to the Act.”

The Code is available on the Disability Rights Commission web site at http://www.drc-gb.org.

The services affected by Part III of the Act

The scope of services, definition of a provider and the extent of liability is set out in section 19(2), subject to the exceptions set out in section 19(5) in relation to education and the use of any means of transport, although the Disability Discrimination Bill, currently before Parliament, and regulations made under it will largely remove this exemption. In addition, it should be noted that the Special Educational Needs and Disability Act 2001 amends the Act so that most pre and post 16 education providers have obligations not to discriminate and to make reasonable adjustments. These provisions have come into force in stages from September 2001, and they mean that those education providers with web sites will need to ensure that their disabled students can obtain access to the web sites effectively.

The provision of services includes “the provision of any goods or facilities”. A person is a provider of services if they are concerned with the provision, in the United Kingdom, of any service to members of the public. This can be in the private, public or voluntary sectors. In addition, it does not matter whether the service is provided at no cost to the user, or in return for a payment. The Code gives a non-exhaustive list of the organizations that provide services at paragraph 2.14. This list makes it explicitly clear that the majority of organizations are included in the definition.

Who is responsible under the terms of the Act

Paragraph 2.15 of the Code indicates that every individual, from the managing director to the most junior employee is liable under the Act. In addition, it does not matter whether the employee is in full or part-time work, and whether they are in a permanent or temporary post. Sole traders, firms, companies and partnerships are all liable, as are the self-employed, employees, volunteers, contractors and agents.

Who has rights under the Act

The provisions of the Act protect both adults and children. Sections 1 and 2, taken together with Schedules 1 and 2, set out the position in detail. Section 1(1) provides that disabled person is a person that “has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities.”
What is meant by discrimination [Heading type B]

The way in which a provider of a service can discriminate against a disabled person is set out in sections 20(1) and 20(2). Section 20(1) reads as follows:

20(1) For the purposes of section 19, a provider of services discriminates against a disabled person if-

(a)     for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b)     he cannot show that the treatment in question is justified.

With respect to the duty under the terms of clause 20(1), a service provider is required to justify that the less favourable treatment is warranted. Section

20(3) permits less favourable treatment only if:

(a)     in the opinion of the provider of services, one or more of the conditions mentioned in subsection (4) are satisfied; and

(b)     it is reasonable, in all the circumstances of the case, for him to hold that opinion.

To establish whether justification is reasonable, the test is as follows:

Subjective - what did the service provider believe?

and

Objective - did the service provider reasonably hold that belief?

It is indicated in the Code at paragraph 7.8 that a service provider does not have to be an expert on disability. However, to justify less favourable treatment, a service provider is expected to take into account all the circumstances, including the opinion of the disabled person, the range of information that is available to help reach a decision and any further advice which it is considered reasonable to seek. This includes the need to change a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled people to take use of its services and the alteration of which would remove the reason for the treatment. The service provider should consider what adjustments it can make that are reasonable in the circumstances – the aim should be to make the adjustment, rather than attempt to justify less favourable treatment. Once a disabled person can show that they have been treated less favourably for a reason relating to their disability, it will be for the service provider to show that the action they took was justified.

Of the conditions set out in subsection 4 of the Act, the only reason that could be construed as being relevant in relation to the design and use of a web site is subsection (b), where a “disabled person is incapable of entering into an enforceable agreement, or of giving informed consent”. It is difficult to imagine how this justification can apply to the design of a web site, although some may try to argue that the provision of the service on different terms was necessary to provide the service at all, although the use of the word “necessary” imports a high threshold.

Duty of providers of services to make adjustments

A service provider can also discriminate against a disabled person as a result of the terms set out in section 20(2), as follows:

(2)     For the purposes of section 19, a provider of services also discriminates against a disabled person if-

(a)     he fails to comply with a section 21 duty imposed on him in relation to the disabled person; and

(b)     he cannot show that this failure to comply with that duty is justified.

Further, the relevant parts of section 21(1) provide:

21(1)  Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.
…

21(4) Where an auxiliary aid or service (for example, the provision of information on audio tape or of a sign language interpreter) would-

(a)     enable disabled persons to make use of a service which a provider of services provides, or is prepared to provide, to members of the public, or

(b)     facilitate the use by disabled persons of such a service

it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid or service.

The terms practice, policy and procedure relate to the way in which a service provider operates its business or provides a service. The meaning of “practice”, “policy” and “procedure” are explained in paragraph 5.6 of the Code:

1.    practice is what a service provider actually does;

2.    the policy is what a service provider intends to do;

3.    the procedure is how the service provider goes about its activities.

As a result of the provisions of section 21, a provider of services is obliged to take a number of (reasonable) steps, the following being particularly relevant to web sites:

1.    to change a practice, policy or procedure which makes it impossible or unreasonably difficult for a disabled person to use its service, and

2.    to provide, by the terms of section 21(4) an auxiliary aid or service if it would enable or make it easier for disabled people to make use of the service supplied by the service provider.

The above steps can refer to the use of a web site in the same way as it refers to the quality of service provided in a physical environment.

The duties contained in section 21 are “anticipatory” in nature, as paragraph 4.14 of the Code points out, and the duty is owed to disabled people at large, because disabled people are a diverse group with different requirements which service providers should consider (paragraph 4.15). The reasonable adjustment duty was addressed for the first time by the Court of Appeal in the case of Roads v Central Trains Limited, cited above, where Lord Justice Sedley said:  “…section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impeded persons with particular kinds of disability – impaired vision, impaired mobility and so on”.

This is a continuing duty, which means that service providers need to keep the duty under review at all times. As a result, the Code, at paragraph 4.19, suggests that the service providers should consider this to be an evolving duty, and not one that should be considered once and then forgotten.

What is meant by reasonable steps

The Act does not set out the factors that should be taken into account to establishing whether a provider of services has taken reasonable steps to make suitable adjustments. The Code suggests, at paragraph 4.21 that the reasonable steps to be taken by a particular service provider will depend on:

1.    the type of services being provided;

2.    the nature of the service provider and its size and resources;

3.    the effect of the disability on the individual disabled person.

Paragraph 4.22 of the Code provides a non-exhaustive list of factors to be taken into account when considering what is reasonable:

1.    whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in gaining access to the service in question;

2.    the extent to which it is practicable for the service provider to take the steps;

3.    the financial and other costs of making the adjustment;

4.    the extent of any disruption which taking the steps would cause;

5.    the extent of the service provider’s financial and other resources;

6.    the amount of any resources already spent on making adjustments;

7.    the availability of financial or other assistance.

Whilst it is more likely to be reasonable that a service provider with substantial financial resources will have to make physical adjustments that may be expensive, it is difficult to believe that any provider of services could argue poverty as an excuse for not ensuring their second or third generation web site should not be designed for the use of both disabled and able people.

The employment provisions of the Act make similar provision for the duty to make reasonable adjustments. In considering this issue, The Employment Appeal Tribunal has stressed the objective nature of the test of whether the duty to make adjustments has been discharged by the employer, and it is clear that the Tribunal puts itself in the shoes of the employer to decide whether or not it thinks other adjustments should have been made, Morse v Wiltshire CC [1998] IRLR 352 EAT. It is therefore likely that, when determining whether or not a service provider can afford any changes, the court will be looking objectively at this, and considering whether, for example, the service provider’s profits would allow it to make such adjustments.

In addition, the governing body of the web, the World Wide Web Consortium, has a Web Accessibility Initiative, which includes Web Content Accessibility Guidelines (http://www.w3.org/TR/WCAG10). The British Web Design and Marketing Association founded another organization, the Usability and Accessibility Working Group. See also the EuroAccessibility Consortium (http://www.euroaccessibility.org) who launched an initiative with W3C for help formulate a harmonised methodology for evaluating web site design. Many web designers fail to design web sites with these guidelines in mind, although it is probable that many web designers may not even be aware of the guidelines. It is likely, however, that courts dealing with DDA cases relating to websites will be considering these standards. A common failure with many web sites that prevents disabled users from using a web site, is the failure to fill in the “tags” on the pages that describe an image. A visually impaired visitor to a web site uses a screen reader to read the text on the web site aloud. The “tag” field can have a description of the image, for instance “Field of sunflowers”. Many web designers fail to add a tag to such images, which means the visually impaired visitor hears the word “image” only, which is meaningless. In addition, the words “Field of sunflowers” may also be relatively meaningless, because it might be an image of a photograph or a painting. The sun might be shining or it may be raining. Even such a tag as “Field of sunflowers” may fail to describe the image adequately, although it has to be accepted that there might be a limit to the amount of description to give an image.

Guidance on what reasonable adjustments should be made in practice, or the auxiliary aids or services that should be provided, are set out in chapter 5 of the Code.  Both paragraph 5.23, in relation to people with a hearing disability, and paragraph 5.26, in relation to people with a visual impairment, include access to web sites to disabled people as examples that service providers could provide.

Failure to make reasonable adjustments

The combined effect of the provisions of section 19(1)(b), 20(2) and 21(10) provide that a service provider must comply with the duty to make reasonable adjustments to avoid committing an act of unlawful discrimination. A disabled person can initiate a claim against a service provider if:

1.    the service provider fails to do what is required; and

2.    that failure makes it impossible or unreasonably difficult for that disabled person to obtain access to any service provided by the service provider to members of the public; and

3.    the service provider cannot show that such a failure is justified.

In order for a failure to make to make a reasonable adjustment to be justified, the failure must be necessary so as not to endanger the health or safety of any person, in accordance with section 20(4) (a) or the disabled person must be incapable of entering into an enforceable agreement or of giving informed consent as set out in section 20(4) (b) - neither of which would seem to be likely in relation to web sites.

Research into poor web site design

Royal National Institute of the Blind

The Royal National Institute of the Blind (“RNIB”) carried out one of the first research projects in August 2000, testing 17 web sites of high street stores and banks against the following criteria:

1.    Whether the text was legible. Important factors to consider were the text and background colours and whether they contrasted well. Patterned backgrounds are particularly difficult to read against.

2.    Whether images had alternative text to provide a verbal description of the image for those visiting the sites that use speech synthesis software.

3.    If frames were used, whether a “noframes” tag is offered to provide a link to a frames-free version of the web site. It is possible that some blind and partially sighted people use software that cannot read frames. In addition, if frames were used, whether they had titles.

4.    Whether the web site was easy to navigate. Graphical navigation links need to be supported by alternative text, and the destination of the link should be obvious. For instance, if a link reads “click here”, where the link is pointing is not obvious to a blind or partially sighted visitor.

5.    Did all the web pages pass the “Bobby” test, as it was called at the time of the test? The Centre for Applied Special Technology (http://www.cast.org/bobby) created an automated checking package, with the name “Bobby”. Although this software does not consider every aspect of a web site, nevertheless it tested most web sites for basic design features that may cause problems for disabled visitors. It should be noted that there are a range of automated web accessibility testing tools that web site designers should consider using, and this test is just one of those that are available.

The test results were published in “Get the message online”, Campaign Report 15 (“Report”), by Julie Howell, in August 2000, and was reprinted in 2001 (Copies of this Report are available at £5 from the RNIB Customer Services Department). In summary, of the financial institutions visited (Abbey National, Alliance and Leicester, Nat West and HSBC), all failed the assessment, even though, as was pointed out by Julie Howell, “banking is regarded as a universal essential service”. The supermarkets (Asda, Marks and Spencer, Safeway, Sainsbury’s, Somerfield, Tesco) achieved no better, although Marks and Spencer and Somerfield passed the “Bobby” test. The two fast food sites (Pizza Hut and Pizza Express) were particularly poor and failed all the tests. The clothing and retail stores (Debenhams, Dorothy Perkins and Evans) all failed the tests, and of the remaining web sites visited, WH Smith and the Post Office, neither helped disabled visitors to any extent.

The Report made the following recommendations as a result of the findings:

1.    Web site designers should take responsibility to ensure everyone, regardless of their ability or disability, can read their designs.

2.    Organizations who have web sites, plan to produce a web site or intend to develop second and third generation web sites should recognise the needs of blind and partially sighted visitors.

3.    Blind and partially sighted people were urged to get in touch with organizations direct to raise the issues if web sites were poorly designed.

4.    Companies featured in the Report were encouraged to acknowledge the needs of disabled people and take steps to improve the design of their web sites. Since this research was published, Tesco set out to build a web site that was user-friendly to disabled people. The new web site was launched earlier this year, at http://www.tesco/access. (Further information about the RNIB Campaign for Good Web Design is available from http://www.rnib.org.uk/wac).

Formal investigation conducted by the Disability Rights Commission

On 28 March 2003, the Disability Rights Commission announced a formal investigation into website accessibility for disabled persons. In the introduction to the Report “The Web Access and Inclusion for Disabled People”, it was pointed out that disabled people ‘must frequently overcome additional obstacles before they can enjoy the full range of information, services, entertainment and social interaction offered by the Web’ and pointed out that the web has enormous potential for disabled people. Further, the simple point was made, that “Irresponsible and inconsiderate design, on the other hand, not only puts disabled users at a significant disadvantage, but can make life unnecessarily difficult for everyone, whether disabled or not.’ Research was carried out by City University to ‘systematically evaluate the extent to which the current design of websites accessed through the Internet facilitates or hinders use by disabled people in England, Scotland and Wales, identifying any recurrent barriers.’ (page 19).

A ‘User Panel’ was established, which comprised 50 disabled people, including people with a variety of impairments that were most affected by problems relating to the accessibility of web sites: blindness, partial sight, dyslexia, profound deafness, including people who are Sign Language users, and hearing impairment and physical impairments that affect access to the Web, such as lack of control of arms and hands, tremor or lack of dexterity in hands and fingers. Panel membership comprised both sexes, all ages and different levels of experience with computers and the internet, including the most widely used types of technology that is bought to help navigate around the web.

The research collected data from five sources (pages 19 and 20):

1.    Meetings with stakeholder groups, to identify the underlying barriers to web accessibility.

2.    Focus groups for each of the impairment groups, to identify the specific concerns of particular groups of disabled people according to impairment.

3.    Automated testing of 1,000 home pages, to establish the current state of website accessibility in Great Britain. Five sectors were represented: government and official information; business; e-commerce; entertainment and leisure; Web services, such as search engines, discussion boards, portals and Internet service providers.

4.    In-depth user and expert testing of 100 websites, to establish the actual problems real disabled users have in using websites.

5.    A controlled study of the use of a sample of six websites (three with relatively high accessibility ratings and three with low accessibility ratings) by blind and non-disabled people, to differentiate between the effects of inaccessible design and those of the impairment itself.

The findings of this Report provided dismal reading:

1.    Most web sites (81 per cent) failed to satisfy even the most basic Web Accessibility Initiative category.

2.    Few web sites (19 per cent) even complied with the lowest priority check-points used to demonstrate how accessible they were.

3.    Blind and partially sighted users in particular, who use screen readers to obtain access to the web, suffer the greatest disadvantages where the design of a web site does not take full account of their needs.

4.    Even though most of those organizations that commissioned web sites claimed they were aware of the needs of disabled people, there is very little evidence of this awareness being translated into effective web site design. Even this finding is questionable, because the response rate to a questionnaire sent to those commissioning web sites and to web site designers was very low (nine per cent from those commissioning web sites and six per cent from web site designers (page 35)).

There are a number of diagnostic tools are available to help the design of a web site with disabled people in mind, as well as automatic testing software. Unfortunately, the use of such software and tools does not mean a service provider will have fulfilled their duty to make reasonable adjustments if the problems remain. Most of the tools require human judgment, and it was noted in the Report that as many as 45 per cent of problems experiences by the user group would not have been detected without the web site being tested by users (page 12). The conclusion reached by the Report was that automatic checks alone do not predict the way a user will interact with a web site, that means many issues relating to the ability of a disabled person to use the web site effectively will go undetected. The Report reached the conclusion, on page 33, that “This leads to the inescapable conclusion that many of the problems encountered by users are of a nature that designers alone cannot be expected to recognize and remedy. These problems can only be resolved by including disabled users directly in the design and evaluation of websites.”

In addition, although the companies that produce operating software and browsers provide a certain number of features that can help a disabled person when they use the web, many are not aware of them or do not know how to use them. This is a problem that must be overcome with training and better design of operating system software. Further, the cost of products that assist disabled people, such as screen readers and magnifiers, tend to be expensive. This means that users do not always up-date such products, and if a web site has been designed to incorporate the latest up-date in such technology, the disabled user will not benefit from the enhanced web site design. Training in the use of such technology is rare, and it is generally considered by the disabled community that the training materials that accompany the products do not meet the needs of the users (page 16, 4.2).

The Report set out a number of recommendations, some of which apply to the design of web sites, some apply to how web sites are tested, whilst others make further suggestions to government. These recommendations were set out in the chapter ‘Summary of Findings and Recommendations’ in number order, and later set out again in the chapter entitled ‘Conclusions and Recommendations for Achieving Useability’:

RECOMMENDATION 1: Website commissioners should formulate written policies for meeting the needs of disable people.

RECOMMENDATION 2: Organizations which provide and oversee education and training for developers, including the vendors of web-authoring tools, should promote an understanding that good development practice entails attending, and responding, to the needs of disabled people.

RECOMMENDATION 3:Website developers should accept that good practice entails attending and responding to the needs of disabled people.

RECOMMENDATION 4: The Government should raise awareness, in the public and private sector, and in the relevant professional and other occupational groups, of the Web accessibility needs of disabled people and of the actual cost of meeting those needs.

RECOMMENDATION 5:Website developers should involve disabled users from an early stage in the design process.

RECOMMENDATION 6: In accordance with the Guidelines, website developers should not rely exclusively on automated accessibility testing.

RECOMMENDATION 7: Developers of automated accessibility checking tools should enhance their functionality to make them more useful to website commissioners and website developers.

RECOMMENDATION 8: The Government should facilitate the development of best practice guidance for accessible website development and ongoing maintenance and thereafter promote a formal accreditation process.

RECOMMENDATION 9: Organizations of and for disabled people should facilitate the enhancement of the skills required by disabled people to make full use of the Web, since they are uniquely placed to offer impairment-specific advice on these matters to those who need it.

RECOMMENDATION 10: Developers of operating systems and browsers should take steps to ensure that accessibility options are easier to discover, understand and select.

RECOMMENDATION 11: The designers and providers of assistive technology should enable and encourage users to keep their products up to date.

RECOMMENDATION 12: In line with its commitment to “bridge the digital divide”, the Government should provide the funding required to enable access to appropriate assistive technology for all those who need it, and to promote its better use.

RECOMMENDATION 13: Existing health, social and rehabilitation services with responsibility for assessing their clients’ needs for physical aids attend, and respond, to the Web accessibility needs of disabled people.

RECOMMENDATION 14: Those professional bodies, colleges and universities involved in training key frontline personnel, such as information and computer technology trainers and librarians, should provide or review awareness and equality training in relation to computer and Web accessibility issues for disabled people.

RECOMMENDATION 15: The Web Accessibility Initiative should give serious consideration to the proposals by City University at Appendix 2 of this report for extending the scope of the Guidelines to address limitations identified in the course of this investigation.

Legal action

No legal action has been taken in the United Kingdom to date in relation to the poor design of web sites. RNIB says that it has considered taking up a number of cases against service providers with regard to their web sites, but when RNIB raises the compliance issues under the Act, companies have tended to alter their web site to make it accessible, rather than resists legal action. It did issue proceedings in one case, which settled on confidential terms. This confirms how easy it is to make the necessary changes.

The Disability Rights Commission can also fund representation for individuals, where it believes discrimination has occurred. Furthermore, under the provisions of the Disability Rights Commission Act 1999, it has the power to instigate formal investigations into sectors, such as the World Wide Web, where it believes that discrimination is taking place.

Australia

Mr Bruce Maguire made a complaint to the Human Rights and Equal Opportunities Commission (“the Commission”) in Australia under the provisions of the Disability Discrimination Act 1992, decision H 99/115 decided on 24 August 2000 (available at http://scaleplus.law.au/html/ddadec/0/2000/0/DD000120.htm). Mr Maguire, who is blind, submitted a complaint on 7 June 1999 that he was unlawfully discriminated against by the Sydney Organising Committee for the Olympic Games (“the Committee”). He claimed unlawful discrimination for failure to provide Braille copies of information to order tickets, Braille copies of the souvenir program and failure of the Committee to provide a web site to which he could obtain access.
In its defence, the Committee argued that the development of a web site was not a “service” under the provisions of section 24 of the Disability Discrimination Act 1992, which reads as follows:

24 Goods, services and facilities

(1)     It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the grounds of the other person’s disability or a disability of any of that other person’s associates:

(a)     by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b)     in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)     in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2)     This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

In considering the nature of the web site, the Inquiry Commissioner, The Hon William Carter QC pointed out on page 8 of his Decision that “The internet is now a well established phenomenon, its capacity to store information of immense proportions to which one can have access is a fact of life.  The respondent in creating its own web site sought to include in it a considerable body of information to which any person could have access.” The web site intended to act as a source of information for use across the world. It was clear that the web site was a service relating to entertainment, as defined by section 4, and it was determined that the provisions of the Disability Discrimination Act 1992 applied to the Committee’s web site. As a result, the failure by the Committee to provide a web site that was available to be used by a person blind from birth was unlawful in that it constituted a breach of section 24, because the web site (a) did not include alternative text on all the images and image maps links, and the disabled user could not obtain access to (b) the Index to Sports from the Schedule page or (c) the Results Tables. The discrimination was determined to be direct discrimination, within the meaning of section 5, although the Commissioner also decided that if Mr Maguire was not discriminated directly in the terms of section 5, it could be found that indirect discrimination had occurred in terms of section 6.

The Committee also argued that changing the web site would impose unjustifiable hardship, in accordance with section 11, which provides:

11 Unjustifiable hardship

For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

(a)     the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b)     the effect of the disability of a person concerned; and

(c)     the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

(d)     in the case of the provision of services, or the making of available facilities - an action plan given to the Commission under section 64.

The Commissioner, in considering the application under section 11, was required to make a decision based on the evidence of expert witnesses. It appears from the discussion of the procedural points by the Commissioner that the Committee failed to fully co-operate in the preliminary stages of the action. This delay was evidenced by a number of points listed by the Commissioner on page 22 of his Decision. In addition, the expert witnesses appearing on behalf of the Committee in relation to the section 11 argument were not able to avoid the obvious weaknesses in their evidence. In reaching his judgment on this point, the Commissioner pointed out, on page 19 of his Decision, that the Committee “never seriously considered the issue [whether the correction of the web site should be carried out] and only when the hearing was imminent did it attempt to support its rejection of the complainant’s complaint by resort to a process which was both inadequate and unconvincing.”

The Commissioner took the following factors into account in reaching the conclusion that the Commission could not avoid liability for its breach of section 24 by claiming unjustifiable hardship:

1.    If a web site were provided that could be used by Mr Maguire and other “vision impaired” persons, it would constitute a considerable benefit. It was only right that he and others should obtain access to the same body of information available to a sighted person in relation to such an important event. The benefit was considerable and the detriment to the Committee would be modest. If the Committee had addressed the issue earlier in the development of the site, the effort to improve it would have been negligible.

2.    In assessing whether any suggested hardship is unjustified, it was important to consider the nature of Mr Maguire’s blindness and its effect in the particular context. Mr Maguire can minimise the effects of blindness when using the internet, but could only do so on the Committee’s web site if the information was presented in a form that was easy to use.

3.    The Committee is a major agency that is supported by considerable financial infrastructure, including government funding. Whilst no precise assessment was made of the cost of rectifying the problems on the web site, such changes were modest in relative terms.

4.    Under 11(d) the service provider can prepare and implement an action plan, giving a copy to the Commission under the terms of section 64. The Committee, from the times of its formation and involvement in the Sydney Olympic Games as a service provider, was likely to come into contact with persons with a disability as defined in the Disability Discrimination Act 1992. Had the Committee prepared and implemented such a plan, it would have been recognised that Mr Maguire and those like him would have to be catered for in the design of the web site. The Committee neither prepared such a plan nor presented a plan to the Commission. However, the Commissioner did not draw any adverse inference on this issue.

The Commissioner decided that the complaint was substantial, and determined:

1.    That the Committee engaged in conduct that was unlawful under section 24 in that it provided for the use of Mr Maguire a web site which because of his blindness was to a significant extent inaccessible; and

2.    Made a declaration that the Committee did all that was necessary to render its web site accessible to Mr Maguire by 15 September 200 by (a) including alternative text on all images and image map links on its web site; (b) providing access to the Index of Sports from the Schedule page; and (c) providing access to the Results Tables to be used on the web site during the Sydney Olympic Games.

The issue of compensation was adjourned to establish whether it subsequently became apparent that Mr Maguire suffered loss and damage.

Claim for compensation by Mr Maguire

It was subsequently determined by the Commissioner that the Committee only partially complied with his determination dated 24 August 2000. A further hearing was arranged for 6 November 2000 and the Commissioner gave the written reasons for his decision on 18 November 2000 (available at http://scaleplus.law.au/html/ddadec/0/2000/0/DD000200.htm). Any compensation is determined under the provisions of section 103(1) (b) (iv) of the Disability Discrimination Act 1992 and is considered under three headings:

1.    the sum payable in respect of injuries for the complainant’s hurt and humiliation on account of his being discriminated against,

2.    an amount for legal expenses, and

3.    any aggravated damages.

The Commissioner pointed out that Mr Maguire has been blind from birth, but despite his disability, his competence at reading Braille and his application of that skill to computer technology was obviously of a high order. Mr Maguire holds a Bachelor of Arts Degree from Macquarie University, his major subjects were Linguistics and Philosophy, he had completed units of a Graduate Diploma in Computer Applications at Riverina-Murray Institute of Higher Learning and was engaged at the time of his application in a Master of Policy and Applied Social Research Degree at Macquarie University.

As a result, the Commissioner decided that Mr Maguire’s expectations of being able to obtain access to information from the Committee’s web site were high and that the Committee was dismissive of Mr Maguire’s concerns from the moment he initiated his complaint. In consequence, the response by the Committee was very hurtful of Mr Maguire and the suggestion by the Committee that he ask a sighted person to assist him navigate the Olympic web site has inconsistent with his expectations and achievements, despite his disability. To dismiss Mr Maguire and to continue to be dismissive of him made him feel angry and rejected by a significant statutory agent within the community. The Commissioner was satisfied that Mr Maguire’s limited access to the Olympic web site caused him considerable feeling of hurt, humiliation and rejection. Furthermore, the Committee made public statements after 24 August 2000 justifying its failure to comply with the decision of the Commissioner by citing material that had been specifically rejected by the Commissioner in the earlier hearing. As a result of this public statement, Mr Maguire suffered a final indignity. The Commissioner awarded the sum of A$20,000 to be paid to Mr Maguire.

United States of America

In August 2004, the Attorney General of New York, Eliot Spitzer, reached an out-of-court settlement with two travel web sites, Ramada.com and Priceline.com. Both organizations agreed to make their sites more accessible to blind and partially sighted people. The companies agreed to implement a range of changes to their web sites. Each company agreed to pay the State of New York US$40,000 and US$37,500 respectively towards the cost of the investigation.

Changes include the requirement that graphics and images have clearly understood labels, tables to have appropriately placed row and column headers, and edit fields (boxes where the visitor fills in information) which must be labeled to indicate what type of information is requested. The new design will allow screen reader software and similar types of technology to function effectively with interactive web sites.

The response

It is clear that the Act imposes a duty on owners of web sites to ensure all visitors can use the web site equally. This is a light duty, (a discussion of the guidelines discussed by the expert witnesses in Mr Maguire’s case can be found in a paper by Martin Sloan, “Web Accessibility and the DDA”, The Journal of Information, Law and Technology (JILT), 25, http://elj.warwick.ac.uk/jilt/01-2/sloan.html) because the technical issues are easy to implement at the planning stage. The RNIB in its Report provides hints on designing web sites in Appendix 2.

There is no reason why all companies with a web site cannot take into account the needs of disabled users when they design second and third generation web sites. It was mentioned above that the new code suggested that the service providers should consider this to be an evolving duty. So, by taking into account the free advice of the RNIB and guidelines of the Web Accessibility Initiative, no organization can offer the excuse any longer that they are justified in failing to provide access for disabled visitors to their web site.

The point is, that disabled visitors may well be customers or potential customers, which indicates the business sense of ensuring disabled people are not discriminated against when designing a web site. What message is an organization giving to disabled people by failing to ensure their web site cannot be seen adequately or at all by a substantial number of people? The business reasons for adhering to the provisions of the Act should be sufficient in themselves. In addition, the public sector will have added impetus in relation to the design and maintenance of websites in the forthcoming Disability Discrimination Bill, which contains a duty to promote disability equality. This is likely to address such issues as inaccessible intranets for disabled staff, as well as websites aimed at the public. The draft Code of Practice which the Disability Rights Commission has issued in relation to the duty has the following example:

“For example, the head of information in a government department is overseeing the redesign of the department’s website, which is being contracted out to a web designer. The head of information ensures that the tender documents include reference to the Disability Equality duty and in particular the need to ensure that the website is fully accessible to disabled people. The standard terms of contract are revised to reflect the fact that any updating and/or maintenance work on the website must ensure access for disabled people, in order to ensure that the department is meeting its disability equality duty”

Lawyers can take immediate action by altering precedents relating to contracts with web designers. If the internet is as good and all-empowering as many claim it is, then minor technical issues relating to the design of a web site should not be used to prevent everybody in taking advantage of the empowerment of the World Wide Web.

© Stephen Mason and Catherine Casserley, Senior Legislation Adviser, Disability Rights Commission, 2005. Additional material provided by Julie Howell, Digital Policy Development Manager, Royal National Institute of the Blind.

http://www.stephenmason.eu