Archive for the 'Disability discrimination' Category

Techblogger article on digital participation in Scotland in new Scottish policy magazine

Published December 8, 2011 Disability discrimination , In the Media , IT Law Leave a Comment

For those of you not on Twitter, I have an article in the launch edition of a new online magazine called Scottish Policy Now.

The magazine aims to provide regular news and analysis of changing government policies; regulation; initiatives and legislation and the impact of all of these on Scotland and people living in Scotland. The first issue looks at digital participation in Scotland, and follows up last month’s GovCamp Scotland conference.

You can read my thoughts on some of the policy and legislative changes that I think need to be implemented in Scotland in order to increase digital participation in Scotland by following this link. I look at the effective use of IT in the public sector, broadband infrastructure, e-accessibility and the need to effectively lobby the Westminster government and Europe on future legislation and policy.

Happy birthday BS8878 – some thoughts on the first year

Published December 7, 2011 Disability discrimination , web law Leave a Comment

Jon Hassell, the lead author of BS 8878, contacted me last week asking me to provide some thoughts towards a blog he was pulling together with views from industry experts on its first year. BS 8878 is the British standard that provides a code of practice for commissioning accessible websites and web products. You can read more about it in this blog.

Jon kindly included some of my comments in his blog, which was published earlier today. Here is the long form version of what I said:

BS 8878 is undoubtedly a useful tool for providing organisations with a framework to follow when commissioning new websites and apps. In turn, this makes it an important tool in assisting organisations with complying with their obligations under the Equality Act 2010.

BS 8878 is unusual in that it is a British standard that has been driven primarily to help promote and improve equality and compliance by service providers, employers and educational institutions with their legal obligations under equality law. Often standards come into existence to codify/bring together good practice, and provide an objective way of comparing organisations or easily referencing a requirement in a contract, but it is less common for them to emerge to assist with complying with law. From a lawyer’s perspective, BS 8878 exists because, unlike the building of physical premises, the law does not mandate specific accessibility requirements when building a website. It is true to say that BS 8878 does not do that either, but it does at least provide website operators with a process to follow, issues to consider, questions to ask, and pointers to external technical guidelines like the W3C’s WCAG.

BS 8878′s current standing
But BS 8878 currently sits in an awkward place.

The development of its predecessor, PAS 78 was funded and led by the Disability Rights Commission (DRC), giving endorsement from the organisation mandated with promoting compliance with the Disability Discrimination Act (and therefore implicitly saying “follow this and you’ll be ok”). However, the successor body to the DRC, the Equalities and Human Rights Commission (EHRC) did not appear to formally particpate in the development of the successor standard. So, whilst BS 8878 is mentioned (here and here) on the EHRC website, it is not formally referenced in any of the codes of practice issued by the EHRC. This is despite the EHRC’s code of practice for service providers being published three months after the launch of BS 8878. I look forward to the EHRC updating its statutory codes of practice to include a reference to BS 8878 and provide organisations with clear guidance on what it expects.

The need for education
It is clear that there is still work to be done on educating people on the use of BS 8878. When referring to it in a recent blog, I was asked why I hadn’t referred to the W3C’s WCAG instead. My answer was that whilst that particular blog may have had a techie slant to it, the majority of people involved in procuring web and app design services (or responsible for internal legislative compliance) will find BS 8878 a far more accessible (no pun intended) document than the W3C’s technical guidelines, and provides a framework that goes beyond a list of technical design requirements. BS 8878 emphasises, and this is important, that simply complying with the WCAG guidelines is unlikely to meet the requirements of the Equality Act. As BS 8878 explains, organisations can’t simply carry out an automated tick box check of the HTML, but instead need to user test the site or app itself to ensure that it actually is accessible.

So happy birthday BS 8878. It’s been a good first year, but there is still much work to do to explain to the world how you fit into the legislative framework and to educate people on your true purpose.

Embedding accessible design skills in the next generation of web developers

Published November 28, 2011 Disability discrimination , eCommerce , Geek Stuff , web law 2 Comments

Last Monday I was in Dundee, speaking to final students at the University of Dundee’s School of Computing.

The School of Computing takes quite a holistic view of teaching computing, and one of the modules covers the “real world”. The School asks external experts to come in and talk to the students about things like identity theft and security standards (such as PCI-DSS), and other laws and regulations that may impact upon what they do when they get out into the working world.

The area that I talk to students about each November is disability discrimination laws and accessible design for websites and mobile apps, an area I’ve been involved with for a number of years (my honours dissertation was on this). This particular talk dovetails with the School’s technical expertise in relation to accessible and usable design.

Rather than bore the students with a dry lecture on The Law, I try to show them how it is relevant to the future careers, and why having a good understanding of the relevant laws will make them more employable, and give their future employers a competitive advantage.

There are a number of key messages that I try to get across:

  • if a website or app is not designed properly, it may be inaccessible to users with disabilities;
  • operators of websites and providers of mobile apps have, in their capacity as service providers educators, and employers, legal obligations not to discriminate on the grounds of disability;
  • failure to do this may lead to that organisation being sued and, perhaps more importantly for a big organisation, suffer damage to its reputation;
  • web and software designers will be responsible for designing and delivering those websites/apps;
  • even if you are working for an independent design company, that company will have contractual liability to the client, and if a site is poorly designed the client may have the right to sue;
  • public sector organisations have a legal obligation to ensure that their ITTs set out requirements in relation to accessibility – if the designer doesn’t have the skills, then it may not get the work;
  • therefore understanding accessible and usable design and the legal obligations applying to your employer/clients will give you a competitive edge – whether in the job market or in winning business.

If we are doing things right, then hopefully accessible and usable design will become second nature to the web and app designers of tomorrow.

If you are involved in commissioning a new website, or a mobile app, then I recommend that you read BS 8878, a new(ish) British standard on commissioning accessible websites. It’s not a technical document, but instead a process that organisations can follow to assist with appointing a designer with appropriate accessibility expertise, and to help ensure the final output is accessible to users with disabilities.

Practical advice for SMEs on web accessibility

Published September 21, 2011 Disability discrimination , eCommerce Leave a Comment

Last year the BSI launched a new British Standard on commissioning accessible websites. you can read my blogs on it here and here.

BS8878 is intended to help organisations when commissioning websites and web technologies, by providing the commissioning organsisation with a process map to follow that should help to ensure that the web technologies procured are accessible to users with disabilities. Notably, following BS8878 may help an organisation to be able to show that it has complied with its obligations under the Equality Act.

BS8878 is particularly helpful to large organisations, who are often used to implementing and complying with British and international standards.

But what happens if you are a smaller organisation? Can BS8878 still help you to ensure that whatever you are doing on the web is accessible to your online audience? The answer is yes. Jonathan Hassell, has recently blogged on his personal experiences in using BS8878 in relation to the website for his recently launched accessibility consultancy. Jonathan should know what he’s talking about – he previously headed up web accessibility at the BBC and, perhaps more importantly, chaired the committee that authored BS8878.

You can read his blog here.

British Standard on web accessibility finally published

Published December 8, 2010 Disability discrimination 2 Comments

Regular Techblog readers may remember my post back in May on the latest consultation by the British Standards Institute on BS 8878, the proposed British Standard on web accessibility. Well, yesterday the final version of BS 8878 was published.

The new Standard
As I said back in May, BS 8878:2010 Web Accessibility. Code of Practice (to give it its Sunday title) is designed to assist organisations in understanding how to develop and commission accessible websites and web products (a generic term used to cover websites, apps and other things that utilise web-based technologies).

The Code of Practice does not seek to replace existing technical guidelines (such as the W3C‘s Web Content Accessibility Guidelines). Instead, it provides guidance and recommendations on good practice for senior management, procurement managers, those in charge of web policy within an organisation, and those people responsible for creating online content.

In particular, it provides guidance on things to consider when procuring web design services, or buying content management systems, from third parties.

Ancillary benefits
As well as helping organisations identify and overcome accessibility problems for people with disability (and helping them to comply with their legal obligations), following the guidance should also improve usability for elderly web users, as well as usability for customers in general (how often does a website not render properly on a mobile device? That’s usually down to poor usability design).

Interaction with the Equality Act
I also blogged recently about the new Equality Act, which has replaced the Disability Discrimination Act, and sets out the laws applying to the accessibility of websites offered by service providers. Whilst complying with BS 8878 will not necessarily automatically mean compliance with the Equality Act, if an organisation can show that it followed the best practice guidance contained in BS 8878, it is likely to assist in demonstrating to a court that the organisation has complied with its obligations to make reasonable adjustments.

BS 8878 can be downloaded from the British Standard Institute’s website. The cost is £100, with a discount available for charities. For an overview of what BS 8878 covers, you should soon be able to download a webinar run earlier today by the ICT and disability charity AbilityNet.

Equality Act – new obligations on ISPs and content-sharing sites?

Published September 10, 2010 Disability discrimination , eCommerce , web law 1 Comment

I have previously blogged about the new Equality Act, which largely comes into force on 1 October 2010.

However, the new Act also includes a section that might worry ISPs and web hosts.

Section 206 and Schedule 25 broadly mirror the provisions that implement the e-Commerce Directive in the UK (the Electronic Commerce (EC Directive) Regulations 2002) in respect of the liability of so-called information society service providers (ie ISPs and website hosts). The effect of that wording is that hosts are not liable for breaches of the Equality Act by websites hosted on their systems, until that website is brought to their attention.

This means that if an ISP hosts a website that contains material which is discriminatory against a person on the grounds of sex, race or sexuality etc, then if that ISP fails to remove the content it could itself become liable for the content.

In other words, the “innocent dissemination” defence flies off.

To the extent that hosts already have similar obligations in respect of material that is defamatory or otherwise illegal, these obligations are not unexpected.

The sting in the tail
However, a consequence of the drafting is that these provsions may also force a hosting provider to consider complaints that third party websites hosted on its servers are inaccessible to users with disabilities. If a website is inaccessible to a disabled user, then that may cause discrimination under the Act, in which case once aware the host may be liable for that discrimination unless it “expeditiously removed the information or disabled access to it.”

In order to ensure that the host is not liable under the Equality Act for any alleged discrimination, the host may have to investigate that complaint and take down the site. But it is unlikely that the host will have the information (or resources) to be able to determine whether a site hosted on its servers discriminates against the individual in question on the basis of that individual’s disability. For one, the host won’t know through what other channels the service in question is provided.

To avoid potential liability, the only option is to suspend access to the site and tell the client to resolve the dispute with the complainant.

And another…
And it’s not just traditional website hosts that have to beware. For example, social networking sites and other sites that host user-generated content have, in my view, generally been able to argue that they are not liable under the DDA for content posted in an inaccessible format by their users, on the basis that the content is not provided by the website operator. They simply provide the infrastructure within which to post that content. It is up to the user to make sure that what he or she posts is accessible to all users.

But does the new Act allow a deaf person to contact Youtube and complain that as the content published by a commercial organisation through its Youtube channel does not contain subtitles (and is therefore inaccessible), Youtube should remove the content or be liable for it?

I’m don’t think it should (for one, Youtube’s archives would be decimated overnight), but that’s what the new law appears to say.

Will any ISP pull a site or content on the grounds of its inaccessibility, rather than risk becoming liable? That remains to be seen. But it certainly gives web accessibility campaigners a potentially powerful tool, albeit I don’t think that’s what parliament intended.

Equality Act – one month to go for service providers and employers

Published September 2, 2010 Disability discrimination , web law 5 Comments

For me, 1 October 2010 is my last day as an unmarried man. For service providers, employers and educational institutions in the UK, however, 1 October is the day on which the Equality Act 2010 largely comes into force.

What is it about?
The Equality Act attempts to consolidate into a single piece of legislation, the laws relating to race, disability, sex, age and other forms of discrimination. This is an ambitious project, and has led to some slightly odd drafting with the drafter attempting to shoehorn the anti-discrimination principles into single sections covering all forms of discrimination – using the obtuse term of “a protected characteristic”.

It is ironic that an act of parliament aimed at improving accessibility is in itself less accessible than its predecessor, the DDA. Whilst some have criticised the DDA for not expressly saying “websites must be accessible”, I think the DDA’s principles approach to drafting was actually one of its strengths. The Equality Act has, however, taken this a step too far.

What is the impact on web and IT accessibility?
In general, the duties remain. Whilst the new Act essentially replicates the previous law, there are some changes to be aware of in respect of the laws applying to the accessibility of IT and web-based services. Here are some of the key changes:

  • there is a new concept of indirect discrimination. Indirect discrimination does not require knowledge. This means that an inaccessible website will likely breach the Equality Act, even if the operator of that website did not know that the design feature in question caused it to be inaccessible to a person with a disability. The obligation is, however, subject to the justification defence (see below)
  • There is now a single justification test, for those limited situations where discrimination can be justified. Discrimination can now be justified where it is considered a “proportionate means of achieving a legitimate aim.” In my example above, this might give a service provider a defence if, for example, it introduced a new security measure for the website that was aimed at reducing fraud, but had the effect of making the website inaccessible to disabled users. This could apply even if the service provider knew about that consequence.
  • the threshold for the obligation to make “reasonable adjustments” is lower. Previously, reasonable adjustments were required only where the service provider had a practice, policy or procedure “which makes it impossible or unreasonably difficult for disabled persons to make use of a service”. Now the test is simply that the provision, criterion or practice placed the disabled person at “a substantial [more than minor or trivial] disadvantage”. This means that service providers, employers, and educational institutions are more likely to be obliged to make reasonable adjustments. There is also no justification defence to this obligation (on the grounds that this should already be covered by the “reasonableness” test).

Specific obligation to provide information in accessible formats
The new Act also includes a specific section dealing with the obligation to make reasonable adjustments to the manner in which information is provided. Whilst undoubtedly aimed at those with “print disability”, it also ensures that service providers and employers have a duty to take reasonable steps to provide information in accessible electronic formats. This covers not just websites, but also information on intranets or that is issued by email:

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

See what I mean about the inaccessible drafting?!

New guidance
To accompany the new Act, the EHRC will be publishing new codes of practice. These codes will replace the current codes issued by the EHRC’s predecessor, the DRC, under the DDA.

In the meantime, you can access the draft code of practices from the EHRC’s website.

New draft of BS8878 on web accessibility published for consultation

Published May 26, 2010 Disability discrimination , eCommerce 2 Comments

The British Standards Institute has just released a new draft of the proposed new British Standard, BS 8878:2010: Web Accessibility – A Code of Practice.

The proposed standard will replace the existing Publicly Available Specification on commissioning accessible websites (PAS78: 2006 Guide to good practice in commissioning accessible websites), and will provide a code of practice for those designing websites. It is not intended as technical guidance, or to replace existing technical standards or guidelines (such as the W3C‘s WCAG, but rather provide guidance (or a “process map”) to those involved in the commissioning process.

This second draft follows a previous consultation in December 2008. The intention is that the new standard will be finalised in November this year. Going forward, it is likely that organisations looking to commission new websites and online services will increasingly refer to compliance with BS 8878.

You can take part in the consultation at by visting the BSI online consultation page.

Court ruling on “reasonable adjustments” under the DDA

Published November 23, 2009 Disability discrimination , eCommerce , In the Media , web law Leave a Comment
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I read at the weekend that an appeal by RBS to over-turn a court order ordering RBS to carry out £200,000 worth of remedial works to a branch in Sheffield has failed.

The case involves a successful claim by a customer that, as a service provider, RBS had breached its obligations under the Disability Discrimination Act 1995 (the “DDA”) – in particular that it had failed to make “reasonable adjustments” (as required under section 21 of the DDA) to make the branch accessible to wheelchair users. The case is signifcant because it is the first time (as far as I am aware) that, in addition to a finding that discrimination had taken place, a court has ordered a defendant to incur capital costs to prevent discrimination from re-occuring.

Whilst this case relates to access to a physical building, it is also relevant for the purposes of considering the DDA and the accessibility of websites by users with disabilities. In particular, it confirms that the courts are prepared to order a defendant to incur substantial costs and carry out remedial work (whether to a bricks and mortar site or a clicks and mortar website). That doesn’t mean to say that costs of £200,000 fixing an inaccessible website will automatically be deemed “reasonable” (RBS did not appear to challenge the reasonableness of that figure), but it does set a precedent in respect of the use of court orders under the DDA.

It’s also interesting to note that the court rejected RBS’s argument that the claimant could access the same services through RBS’s Internet banking website, and therefore that RBS had discharged its duties under the DDA. The court differentiated the channels through which services are offered to customers on the basis that there are certain things that can be done in a branch that cannot be done online. This may make it harder for operators of inaccessible websites to say that other, alternative, channels offer the same functionality as the website.

A European Disability Act for the Web?

Published October 15, 2009 Disability discrimination , eCommerce , In the Media 2 Comments
Tags: ,

Deep down in a recent white paper launch by European Commissioner for Information Society and Media, Viviane Reding, the Commissioner gave an indication of the Commission’s plans in respect of the accessibility of websites.

In the UK, the main legislation in this area is the Disability Discrimination Act 1995 (as amended) (DDA). In summary, the DDA places a general obligation on organisations not to discriminate when providing services. The DDA doesn’t specifically mention websites, but then the Web was barely a twinkle in Tim Berners-Lee’s eye when the bill that became the DDA was being discussed by parliament. That said, the flexible, principles-based approach of the DDA has proved relatively successful and adaptable, and there is a reasonably common consensus that the DDA imposes a general duty on the operators of websites to make those websites accessible to people with disabilities. For a deeper discussion on web accessibility and the DDA, see this paper.

To date, European-derived law has been limited, and its impact in the UK even more so. Yes, there are some European rules on equal treatment, but the main impact on accessibility has been on public procurement. Here, the current (EU-wide) rules governing procurement by public sector organisations require the procuring organisation to specify its requirements in relation to accessibility and design-for-all when developing its technical specification. See this legal update for more on that. However, the Commission has not yet flexed its muscles in relation to the private sector.

So what of the latest announcement? Well, we’ve seen this before. Back in 2006 the Commission announced European-wide accessibility rules but in the small print it became clear that the “rules” were in fact an action plan, and that its scope related only to the public sector (see previous paragraph).

This time, however, there is talk of encouraging all member states to embrace and endorse version 2.0 of the W3C‘s web content accessibility guidelines (WCAG) – a set of technical standards developed by technical experts. From a UK point of view, this is unlikely to lead to a seismic change – the British Standards Institute’s PAS 78 and the draft British Standard for web accessibility (BS 8878) both make reference to the WCAG, and I would expect a court to look to these documents when determining appropriate practice (particularly given that their development was sponsored by the Disability Rights Commission and its successor, the Commission for Equality and Human Rights). So far so good, then.

However, the most interesting part of the speech was how Commissioner Reding thought that the WCAG should be embraced by member states:

“I believe the way we should do this is to develop together with stakeholders a European Disability Act.”

Quite what form a “European Disability Act” will take remains to be seen. Will it once again apply only to the public sector or will it also apply to private sector organisations? What else will it say? Will it undermine the principles-based approach of the DDA?

One must assume that this will be implemented by way of a new Directive or Regulations. That being the case, I hope that those new rules are carefully drafted. One of the great benefits of the DDA is that (unlike equivalent, overly prescriptive, legislation in the US), its generic and flexible nature means that it can be easily adapted to changing technology. Hardcoding the WCAG 2.0 and other Web-specific rules into European law might be good on one level (in that it will force the introduction of some form of web accessibility requirement under national law), but I fear that further down the line this will cause service providers and courts to tie themselves in knots as they try to interpret and apply law that, quite frankly, can’t keep up with evolving technology.

Martin Sloan

Twitter: @BrodiesTechBlog feed

 

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