Equality Bill power could take sites down for having poor accessibility

The new Equality Bill is designed to replace the Disability Discrimination Act (DDA) and, like it, says that websites must be accessible to disabled users (albeit the language is harder to follow). Few have sued website owners under the old law and none of these cases resulted in a judgment.

But in what looks like a flawed solution to a problem that never existed, a person with a complaint potentially has a greater power under the Equality Bill. Don't waste time and money suing the site owner – just tell whoever is hosting the site to take it off the internet.

The quirk arises because a clause has been inserted into the law that is standard practice in other kinds of laws. Parroting the European Union's E-Commerce Directive, the clause says that a web host is not liable for a site owner's failure to make a site accessible unless it is notified of a problem and fails to act.

It will avoid liability for a suit under Schedule 25 of the new law if "on obtaining actual knowledge that the provision of the information amounted to a contravention […] the service provider expeditiously removed the information or disabled access to it".

This raises the possibility of someone finding an inaccessible website, ignoring the owner and going straight to the web host to report it. That host can then choose either to risk liability under the new law or take it offline.

The DDA and Equality Bill generally expect actions to be brought against the provider of a service that discriminates. A site owner is the likely target – and that organisation might be forced to pay damages for injury to a disabled user's feelings. It might also be ordered to make changes to its website, to end the discrimination. But it's highly unlikely that a court would shut down an entire site, excluding everyone, pending an accessible redesign.

The DDA contained a power to sue someone who knowingly aids discrimination and a similar power is found in the Equality Bill. In theory it could be used against a web developer who follows a client's instructions to build a site that discriminates. Could it be used against a host? I doubt it. If anyone tried, I think a court would say the host is the wrong party to sue: it's too remote.

The Equality Bill appears to characterise this rather remote risk as a problem that must be solved. The solution, though, appears to introduce a new remedy to the law, probably unwittingly.

According to the official explanatory notes that accompany the Bill, web host protection is necessary to ensure the UK correctly transposes the E-commerce Directive. The Bill uses the same language that shields a host from the copyright-infringing or libellous content that's uploaded by its customers or their users. A host must block or remove such content 'expeditiously' on pain of becoming liable for it.

In those contexts it makes sense, because those laws deal in absolutes. Our copyright law says "if you infringe, you're liable".

But the Equality Bill, and indeed the DDA, are more subtle. They have to be. They say that organisations must make "adjustments" to accommodate accessibility, but they allow courts to take into account the cost of adjustments and an owner's finances. These laws recognise that buildings and websites don't become accessible overnight.

So if it really was needed at all, the Equality Bill's protection for web hosts should have been just as nuanced as the rest of it.

As written the Equality Bill could provoke an assortment of genuine and mischievous complaints to web hosts. "You're hosting a site that's not accessible to me," an email could say. "Take it down right now or I'll sue you." I doubt that was the legislators' intention.

Assessing accessibility is difficult, and involves making a judgement call. Some features or pages of a site are likely to be more accessible to more people than others.

With copyright and libel accusations, many hosts err on the side of caution and comply with the request, so the complaint is never tested in court. That may result in a video being taken down from YouTube; but the consequences are usually proportionate. With web accessibility complaints, there is a real risk of disproportionate measures.

The problem, I think, is that the language of the E-commerce Directive has been copied and pasted into a law where it does not belong. The rationale was laudable – hosts should not bear responsibility for a customer's accessibility compliance. But the execution was flawed. In trying to protect hosts, the legislators have created a fast-track procedure for getting websites off-line, circumventing the more proportionate approach of the Equality Bill.

I'm not convinced that hosts would have had any liability for the Equality Bill compliance of their customers had it stayed silent on the issue. But if that was in doubt, the protection for hosts should have been more balanced. It is almost certainly too late for that to change. The Bill had its final reading in the House of Lords last week and will probably become law in October 2010 if the Lords' last-minute tweaks get the nod from the Commons on Tuesday, 6th April.

My expectation is that major hosts in the UK will not pull the plug on their customers' sites on receipt of an email from a single user. If they did, their customers would migrate to an overseas host. But it does give them a headache. Some might say the rule is a good one because it could be a driver for greater web accessibility; but it's the wrong driver, in my view. It's a disproportionate penalty and probably a mistake.

By Struan Robertson, editor of OUT-LAW.COM. The views expressed are Struan's and do not necessarily represent those of Pinsent Masons.

Struan is co-writing BS 8878, the first British Standard to address web accessibility. You can follow him at Twitter.com/struan99.