Disability Laws and the Internet - Spring 2005

01 April 2005

In our last edition of In Business we highlighted the alarming number of websites which still do not comply with rules set down by the Disability Discrimination Action 1995. In this issue we take a more in depth look at the rules and compliance generally.

This article will hopefully explain the context in which the rules apply and consequences for breach.

It goes without saying that use of the internet is now an integral part of everyday life. More and more, financial institutions, government bodies and public information agencies actively direct customers to websites, rather than offices or telephone call centres. The basic position, therefore, is that access to the internet by everyone, regardless of any disability, is an essential aspect in ensuring that information is available to everyone, but also, that information is contributed by everyone.

A ‘disability’ can be visual or hearing (which are possibly the two which spring to mind most readily) but can also be colour blindness, dyslexia and physical problems which would prevent a person from using a keyboard.

There are technologies available to disabled users to assist with access, but in many cases, these technologies will only work if the website has been designed in accordance with standards which were set down by the World Wide Web Consortium. Many, many websites have not been designed in accordance with these standards, which means that a great number of them are unavailable to disabled users. Part III of the Disability Discrimination Act 1995 (DDA) was introduced in October 1999. This part of the DDA deals with service providers and it implemented an accompanying Code of Practice. In November 2001, the Disability Rights Commission delivered a revised Code of Practice for Part III of the Act. Strangely, for a very modern piece of legislation, neither the Act nor the Code of Practice specifically set down rules for websites. It is generally accepted that, by analysis of Part III, websites are however, included in the legislation. This arises because of the wording of the list of grounds for ‘discrimination’ which include:

‘(a) 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) failing to comply with any duty imposed on him by Section 21 (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;
(c) the standard of service which he provides to the disabled person or the manner in which it is provided.’

Cases bought under similar legislation in America (Car Parts Distribution Centre Inc. et. al. v. Automotive Wholesalers Association of New England Inc.) and Australia (McGuire v. SOCOG) have established that services are not limited to physical services and may include websites. While not binding in this country, these cases seem to be persuasive in terms of applying the legal rules to modern life.

Assuming, therefore, that websites come within the scope of a ‘service’ under the DDA, it is necessary to look at the rules, since anyone who is considered to be a disabled person can bring a legal claim for protection against alleged discrimination. The DDA defines a disabled person as ‘someone who has a physical or mental impairment that has an effect on his or her ability to carry out day to day activities.’ This definition is extremely wide, and potentially catches a great number of people.

A website provider must therefore take steps to ensure that he has not deliberately refused to provide a service to a disabled person which is offered to other members of the public. It is not difficult to see how this obligation will be breached by the vast majority of websites if, for example, any element of the website, relies solely on visual descriptions of products, or if the site is designed in such a way as people with poor motor skills are unable to access parts of it to order goods on line.

The second duty under the DDA relating to ‘reasonable adjustments’ is the obligation which really bites to ensure that website providers take action.

While there are no decided English cases on the provisions of the DDA in connection with websites, it is thought to be highly likely that the courts will find that an inaccessible website will breach a website provider’s obligations under the DDA. This is especially in light of the fact that there are now many website designers and agencies who are offering a DDA compliance service and the software for making ‘reasonable adjustments’ is readily available. The latest Code of Practice, while not specifically mentioning websites, at least envisages that technology is developing at a fast rate, and therefore creates an obligation on service providers to continually review their obligations in light of emerging technologies.

So what are the consequences of a breach of the DDA? The first thing to say is that the penalties are not akin to criminal penalties in that, (at least in the first instance), there are no fines or sentences of imprisonment. Rather, the court will have the full range of civil remedies open to it, which will include, for example, an order to stop a service provider from discriminating, or a positive order to make the service provider make ‘reasonable adjustments’ to the website in question in order to bring it within the rules.

It follows that the Court can also award damages, although in this country, it is not clear how those damages would be assessed at the present time.

The Code of Practice and the rules are becoming more widely known. Many businesses and other service providers are, therefore, taking steps to ensure that their websites are compliant. In many cases, compliance is a flag to be flown by the relevant organisation in marketing terms, so provides additional commercial benefit beyond simply making the site available to wider range of users.

The converse is also true, however, in that a large or well known organisation which does not comply and who has an action bought against it by an aggrieved user, will suffer detrimental exposure, especially if the particular provider in question purports to subscribe to other anti-discriminatory or equal opportunities policies.

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