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 areoplane. 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 he or she chooses to use the facilities. An able-bodied person can use the Web to correspond, seek information and, if so wished, 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 enables 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 site. If you are blind, you no longer have to telephone the store 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. 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 people can take advantage of the up-to-the-minute news and sports results that are now available online. In addition, the inclusion of railway and bus timetables on 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
The trouble is that 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 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 has been implemented in stages, and the crucial date for any organisation with a Web site was 1 October 1999, when s21(1), (2)(d), (4), (6) and (10) was brought into force by the Disability Discrimination Act 1995 (Commencement No 6) Order 1999 (SI 1999 No 1190). Section 21(3) and (5) was brought into force on 26 April 1999 by the same statutory instrument. Before looking at the provisions of s21, it may be pertinent to remind the reader that, under the provisions of s19, 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 to which ss20 and 21 apply. 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). The Code is admissible as evidence in accordance with s53(5) of the Act, and s53(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 Disability Rights Commission recently issued a new code ‘Proposals for a new code of practice: Rights of access, goods, facilities, services and premises’, and, following the consultation period, the code is awaiting publication. The new code contains the following illustration (taken from paragraph 2.16 of the proposed code, which is available on the Disability Rights Commission Web site at http://www.drc-gb.org):
‘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.’
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 s19(2) of the Act, subject to the exceptions set out in s19(5) in relation to education and the use of any means of transport. 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 come into force in stages from September 2001, and they mean that those education providers with Web sites will need to ensure that they are accessible to their disabled students.
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 new code gives a non-exhaustive list of such services at paragraph 2.13. This list makes it clear that the majority of activities are included in the definition.
Who is responsible under the terms of the Act
Paragraph 2.14 of the proposed 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
Both adults and children are protected by the provisions of the Act. Sections 1 and 2, taken together with schs1 and 2, set out the position in detail. Section 1(1) provides that a disabled person is a person who ‘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
The way in which a provider of a service can discriminate against a disabled person is set out in s20(1) and 20(2). Section 20(1) reads as follows:
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 s20(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?
Paragraph 6.7 of the new code establishes that the service provider does not have to be an expert on disability, but is expected to consider all the circumstances of each situation. This includes the information available to the service provider, whether it was possible to obtain advice, and whether the service provider asked for and listened to the opinion of the disabled person concerned. Once a disabled person can show that they have been treated less favourably, it will be for the service provider to show that the action they took was justified.
Of the conditions set out in s20(4), 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.
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 s20(2), as follows:
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 provide:
(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.
. .
(4) Where an auxiliary aid or service (for example, the provision of information on audio tape orof 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 new code:
- practice is what a service provider actually does
- the policy is what a service provider intends to do
- the procedure is how the service provider goes about its activities.
As a result of the provisions of s21, a provider of services is obliged to take a number of (reasonable) steps, the following being particularly relevant to Web sites:
- to change a practice, policy or procedure which makes it impossible or unreasonably difficult for a disabled person to use its service, and
- to provide, by the terms of s21(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 s21 are ‘anticipatory’ in nature, as paragraph 4.8 of the new code (and this is also contained in the existing Code) points out, the duty is owed to disabled people at large, because disabled people are a diverse group with different requirements which service providers should consider. This is a continuing duty, which means that service providers need to keep the duty under review at all times. As a result, the new code 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 in establishing whether a provider of services has taken reasonable steps to make suitable adjustments. The proposed code suggests, at paragraph 4.11, that the reasonable steps to be taken by a particular service provider will depend on:
- the type of services being provided
- the nature of the service provider and its resources
- the effect of the disability on the individual disabled person.
Paragraph 4.12 of the new code then provides a non-exhaustive list of factors to be taken into account when considering what is reasonable:
- whether taking any particular steps would be effective in overcoming the difficulty that disabled people face in gaining access to the service in question
- the extent to which it is practicable for the service provider to take the steps
- the financial and other costs of making the adjustment
- the extent of any disruption which taking the steps would cause
- the extent of the service provider’s financial and other resources
- the amount of any resources already spent on making adjustments
- 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 laid down ‘accessibility’ criteria and certain guidelines (www.w3.org/WAI/References). Many Web designers fail to design Web sites with these guidelines in mind, although it is probable that many designers may not even be aware of the guidelines. A common failure which prevents disabled users from using a 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 site aloud. The ‘tag’ field can have a description of the image, for instance ‘Field of sunflowers’. Many Web designers fail to add such images, which means the visually impaired visitor hears only the word ‘image’, which is meaningless.
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 new 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 should provide.
Failure to make reasonable adjustments
The combined effect of the provisions of ss19(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:
- the service provider fails to do what is required; and
- 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
- the service provider cannot show that such a failure is justified.
In order for a failure 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 (s20(4)(a)) or the disabled person must be incapable of entering into an enforceable agreement or of giving informed consent (s20(4)(b)) – neither of which would seem to be likely in relation to Web sites.
Research into poor Web site design
The Royal National Institute for the Blind (‘RNIB’) carried out research in August 2000, testing 17 Web sites of high street stores and banks against the following criteria.
- 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.
- Whether images had alternative text to provide a verbal description of the image for those visiting the site who use speech synthesis software.
- 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 people use software that cannot read frames. In addition, if frames were used, whether they had titles.
- 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 visitor.
- Did all the Web pages pass the ‘Bobby’ test? The Centre for Applied Special Technology (http://www.cast.org/bobby) has created an automated checking package, with the name ‘Bobby’. Although this software does not consider every aspect of a Web site, nevertheless it will test most Web sites for basic design features that may cause problems for disabled visitors.
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:
- Web site designers should take responsibility to ensure everyone, regardless of their ability or disability, can read their designs.
- Companies 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.
- Blind and partially sighted people were urged to get in touch with organisations direct to raise the issues if Web sites were poorly designed.
- 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 is 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/digital).
Legal action
No legal action has been taken in the UK 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 resist legal action. 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.
A complaint was made by Mr Bruce Maguire to the Human Rights and Equal Opportunities 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. 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.
The version of this article on the SCL Web site has full details of the complaint and ruling in this case.
In summary, the Commissioner determined that the complaint was substantial, that the Committee engaged in conduct that was unlawful under the Australian Act and awarded Mr Maguire substantial compensation.
Conclusion
It is clear that the Act imposes a duty on owners of Web sites to ensure all visitors can use their 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 organisation can offer the excuse any longer that they are justified in failing to provide access for disabled visitors to their 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 organisation giving to disabled people by failing to ensure that their Web site can 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.
Further, lawyers can take immediate action by altering precedents relating to contracts with Web designers, as Stephen Mason has already done to the Web designer precedents he has written and which are available at http://www.ebldirect.com Web site. 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 taking advantage of the empowerment of the World Wide Web. n
© Stephen Mason and Catherine Casserley, Legal Officer, Royal National Institute for the Blind, 2001. Additional material provided by Julie Howell, Campaigns Officer (Accessible Internet) Royal National Institute for the Blind. stephenmason@stephenmason.co.uk
