Disabled access to web sites under UK law
This guide is based on UK law. It was last updated
in March 2007.
Introduction
If your business has a web site, it should be accessible to the
disabled. There are ethical and commercial justifications for this,
but there is also a legal reason: if your site does not meet
certain design standards, it is feasible that you could be sued for
discrimination.
To date, only two companies have faced such legal action. In
both cases, the action was initiated by the Royal National
Institute for the Blind (RNIB), and both cases settled without
being heard by a court. The RNIB decided against naming the two
companies. However, it is widely anticipated that a higher profile
test case against a non-compliant site will be heard before the UK
courts in the near future. Clearly, this is a battle which any
business will want to avoid.
There has been one case on the accessibility of electronic
services that resulted in an employment
tribunal finding of discrimination. That case, decided in
October 2006, involved the accessibility of a computer-based
examination.
What is accessibility?
The accessibility of web sites covers much more than just
disabled access. It's about giving people unhindered access to a
web site from various devices, such as web-enabled televisions,
mobile phones and PDAs. It's also about
giving access to users who have different screen sizes, browser
types and settings, or those who do not have plug-ins such as
Flash.
This article is not about accessibility generally; instead, it
concentrates on one aspect, namely the legal obligation to provide
access to the disabled.
What is disabled access?
For those with disabilities such as sensory or mobility
problems, the internet can be a mixed blessing. Home shopping, for
example, can be invaluable to those for whom busy streets present a
difficult challenge. However, in much the same way as a building
may be problematic to the physically disabled, a web site may also
present barriers to access.
For example, a visually impaired internet user can use a screen
reader to translate the contents of web pages for speech
synthesisers or Braille displays. The user will struggle to
understand web pages if, for example, images are displayed on the
page without a text alternative (in HTML, alt attributes should
be added to all image tags).
This example is commonly cited when discussing disabled access.
Bear in mind that visual impairment describes a wide range of
problems including those who are registered blind, those who are
colour blind or those who suffer from tunnel vision or cataracts.
There are also those with motor disabilities, cognitive
disabilities and other impairments. Barriers to access by
individuals suffering any such disabilities can be interpreted as
discrimination.
What does the law say?
The UK Disability Discrimination Act of 1995 states:
"It is unlawful for a provider of services to discriminate
against a disabled person [...] 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."
It includes "access to and use of information services" among
its examples of services to which the rules apply. It adds:
"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."
At first, there was some ambiguity because the wording of the
Act did not specifically refer to web sites - although the
consensus has long been that the reference to "information
services" includes web sites.
This ambiguity was removed by the publication in February 2002
of a Code of Practice which is based on the Act.
In explaining the services which a business should make
accessible to people with hearing or visual disabilities, the Code
cites "accessible web sites" among its examples.
Further, in describing services affected by the Act, the Code
gives the following example:
"An airline company provides a flight reservation and booking
service to the public on its web site. This is a provision of a
service and is subject to the Act."
So the duty on an organisation with a web site that is not
accessible to the disabled is to take "reasonable" steps to make
that site accessible. In considering what is reasonable, the Code
suggests that the financial resources of an organisation will be
among the factors that should be taken into consideration.
Therefore, in simple terms, a large company will struggle to
justify any failure to make its site accessible, while a small
business or a charity may have a better defence, if it can show
that it cannot afford the necessary development work.
What standard is required?
Nobody knows for certain what level of disabled access is
required of UK web sites. However, there is consensus that the best
practice is to comply at least with a minimum accessibility level
defined by the World Wide Web Consortium, or W3C. This
standards-setting body was founded in 1994 by Tim Berners-Lee, the
man credited with inventing the web.
The W3C has a Web Accessibility Initiative, or WAI, which
includes the Web Content Accessibility Guidelines, or WCAG. The
WCAG provide three 'conformance levels'. These are known as Levels
A, AA and AAA. Each level has a series of checkpoints for
accessibility - known as Priority 1, 2 and 3 checkpoints.
According to the W3C, a web site must satisfy Priority 1 (Level
A), otherwise some users will find it impossible to access the
site. The W3C considers that a web site should satisfy the Priority
2 (Level AA), otherwise some users will find it difficult to access
the site. Finally, a site may satisfy Priority 3 (Level AAA),
otherwise some users will find it somewhat difficult to access the
site.
You can find the WAI Guidelines and related documents at W3C's
site.
To be safe, your site should satisfy Priority 1 (or Level A).
Although there is no relevant case law on the UK Act, a case was
brought in Australia which did refer to the W3C conformance levels.
This case was based on an Australian law which is very similar to
the UK law, so a UK court might be persuaded to follow it.
The case was brought by a blind man, Bruce Maguire, against the
Sydney Organising Committee for the Olympic Games, known as SOCOG.
He argued that the SOCOG web site breached Australia's Disability
Discrimination Act because it was inaccessible to him when using a
refreshable Braille display and web browser. In ruling against
SOCOG, the Commission of the Human Rights and Equal Opportunities
Commission supported the W3C guidelines and, during the hearing,
reference was made to the ease with which the SOCOG site could be
brought up to Level A compliance.
Conclusion
Disabled charities have named and shamed companies for failing
to make their web sites accessible to disabled users. As mentioned
above, the RNIB has already taken action over non-compliant sites
without naming the companies. The consensus is that we will soon
see a similar case against a named company.
Accordingly, you should make sure your site complies at least
with Level A of the W3C's WAI guidelines though Level AA is a
better minimum target. We believe OUT-LAW.COM conforms to
Level AA on most pages but if you discover otherwise, please email
our editor, struan.robertson@out-law.com.
A simple check of your own site can be made by entering your
site's internet address in the search box of the TAW accessibility
tool. Use this or any other automated testing service with
caution: these
tools can identify obvious errors in your
site's accessibility, which is useful to indicate the need for
accessibility improvements. But do not interpret a clean
bill of health from any automated test as meaning that your site is
therefore 'DDA compliant'. Beware any vendor that
suggests otherwise. There are
problems with automated accessibility testing tools and some
results have been found to be unreliable.
If you are a web developer, accessibility is something you
should discuss with your clients, who may want designs which would
fail to meet the minimum W3C standard. If clients insist on such
designs, you should address this in the development contract. Seek
an indemnity to protect you in the event of litigation over
the site's failure to comply with the accessibility
legislation.
Finally, as mentioned at the start of this article, it should
not be forgotten that there are good reasons for increasing
accessibility beyond the legal minimum. Jakob Neilsen, based in the
US, is widely regarded as the guru of web site accessibility. He
writes:
"As long as companies and government agencies view accessibility
as solely a matter of complying with regulations and technical
specifications, rather than a way to support the work practices and
customer needs of people with disabilities, equal opportunity will
remain a travesty. Web sites and intranets must follow usability
principles and make it easier for customers and employees with
disabilities to perform their tasks."
Contact:
Struan Robertson (Glasgow, 0141 249 5422) or Jon Fell (London, 020 7490 4000)
Useful links
Australian case between Bruce Maguire and SOCOG:
Jakob Neilsen's site at Useit.com provides helpful articles on
issues involved in accessibility. You can also sign-up to receive
his free bi-weekly column on accessibility.
