Web Site Design and the Disability Discrimination Act 1995
by Stephen Mason
With minor exceptions, the internet does not necessarily make a significant difference to the way an able bodied person lives their life. The implications for the disabled person are wider. A disabled person's life can improve a great deal, for instance, by shopping or buying travel tickets online. Blind and partially sighted people can use software to listen to what is written on a web site. As a result, planning a trip, for instance, can be made much easier for disabled people.
However, most web sites have not been designed with the disabled user in mind. 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.
- Failing 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 web site aloud. The "tag" field can have a description of the image, for instance "Clouds in sky". Images that have not been provided with a description of the image in text but the word "image", renders the image meaningless to the visitor.
- Web sites that rely on new technologies that are not available to all users.
The Law
Disabled users can now use the Disability Discrimination Act 1995 ("the Act") to enforce owners to redesign their web sites. The Act has been implemented in stages, and the crucial date for any organisation with a web site was 1 October 1999, when sections 21(1), (2)(d), (4), (6) and (10) were brought into force. Section 19 makes it is unlawful for a provider of services to discriminate against a disabled person, and examples of the services to which sections 20 and 21 applies includes "access to and use of means of communications" and "access to and use of information services". Both of these sub-sections apply to the design and functioning of a web site.
A new Code of Practice, published by the Disability Rights Commission in February and available at www.drc-gb.org, accompanies the Act. The Code is admissible as evidence, and 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. This article will not consider the content of the Code, but will focus on the Act.
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, and it does not matter whether the service is provided at no cost to the user, or in return for a payment.
What is Meant by Discrimination
A provider of a service discriminates against a disabled person where they treat a disabled person less favourably because of their disability, and they cannot show that their treatment of the disabled person is justified. Clause 20(1) provides that a service provider is required to justify that less favourable treatment is warranted. The test is:
- Subjective - what did the service provider believe? and
- Objective - did the service provider reasonably hold that belief?
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.
Reasonable Steps
The Act does not set out the factors that should be taken into account to establishing whether a provider of services has taken reasonable steps to make suitable adjustments. Whilst the new Code provides guidance in relation to what is reasonable, it is difficult to believe that poverty could be argued as an excuse for not ensuring the second or third generation web site should not be designed for the use of both disabled and able people.
Failure to Make Reasonable Adjustments
Where a service provider fails to make reasonable adjustments, a disabled person can initiate a claim 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.
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. 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 neither WH Smith
nor the Post Office helped disabled visitors to any extent.
Legal Action
No legal action has been taken in the UK to date in relation to the poor design of web sites. The RNIB says that it has considered taking up a number of cases, but when they raise the compliance issues, companies have altered their web site to make it accessible, rather than resist legal action.
The Response
The Act imposes a duty on owners of web sites to ensure all visitors can use the web site equally. This is a light duty, because the technical issues are easy to implement at the planning stage. Lawyers can take immediate action by altering precedents relating to contracts with web designers, as the author has already done to the web designer precedents he has written and which are available at www.ebldirect.com (Electronic Business Law, from Butterworths). 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 in taking advantage of the empowerment of the world wide web.
© Stephen Mason, 2002
Stephen Mason was called to the Bar by the Honourable Society of the Middle Temple in November 1988. He acts as a legal consultant in e-risks.
Email stephenmason@stephenmason.co.uk
Further information provided by Stephen Mason:
* The governing body of the web, the World Wide Web Consortium, has laid down "accessibility" criteria and guidelines at http://www.w3.org/WAI/References.
* The Centre for Applied Special Technology has created an automated checking package at http://www.cast.org/bobby.
* "Get the message online", Campaign Report 15, by Julie Howell, reprinted 2001 is available at £5 from the RNIB Customer Services Department.
* Further information about the RNIB Campaign for Good Web Design is available from http://www.rnib.org.uk/digital.
* A more detailed article written by the author and Catherine Casserley Legal Officer, Royal National Institute for the Blind, was first published in Computers and Law, December 2000/January 2001, Volume 12, Issue 5, 16 - 20 and is also available online at http://www.scl.org.
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