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Disability Discrimination Act (DDA) & web accessibility

In recent years concern has been expressed that the Internet is becoming more and more inaccessible to the disabled peoples. 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.

There seems to be widespread speculation about the legislation introduced under the Disability Discrimination Act (DDA), which ensures that websites are accessible to blind and disabled users. Try to find specific information about what the law requires you to do and chances are you'll come up empty handed.

The RNIB (Royal National Institute for the Blind) and the DRC (Disability Rights Commission), two of the most renowned advocates for the DDA (Disability Discrimination Act) and accessible websites, have no specific information about the laws and what websites specifically need to do in order to meet the legal requirements.

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 an 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.

Section III of the DDA8, which refers to accessible websites, came into force on 1st October 1999 and the Code of Practice9 for this section of the DDA was published on 27th May 2002. This means that the majority of websites have been in breach of the law for over five years

Part III of the Disability Discrimination refers to the provision of goods, facilities and services. The Code of Practice7, which specifically mentions websites, can be downloaded in its entirety from the DRC website.

The relevant quotes from the 175-page Code of Practice are:
    * 2.2 (p7): “The Disability Discrimination Act makes it unlawful for a service provider to discriminate against a disabled person by refusing to provide any service which it provides to members of the public.”
    * 4.7 (p39): “From 1st October 1999 a service provider has to take reasonable steps to change a practice which makes it unreasonably difficult for disabled people to make use of its services.”
    * 2.13 - 2.17 (p11-13): “What services are affected by the Disability Discrimination Act? 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.”
    * 5.23 (p71): “For people with visual impairments, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include ... accessible websites.”
    * 5.26 (p68): “For people with hearing disabilities, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include ... accessible websites.”
It's widely believed that the new laws were implemented in October 2004, when the final part of the Disability Discrimination came into force. This final piece of legislation actually referred to service providers having to consider making permanent physical adjustments to their premises and is not related to the Internet in any way.

The Disability Discrimination Act says that web sites must be made accessible to disabled people also. The DRC's recent report has suddenly thrown this into the spotlight of the online community and a lot of misinformation has been thrown around.

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.

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