Disabled access to websites under UK law
This guide is based on UK law. It was last updated
in December 2008.
Introduction
If your business has a website, it should be accessible to
disabled users. 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, few companies have faced such legal action. In two
cases, actions were initiated by the Royal National Institute for
the Blind (RNIB), and both settled without being heard by a court.
The RNIB decided against naming the two companies. It has long been
anticipated that a higher-profile test case will be launched
against a non-compliant site. 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 websites covers much more than just
disabled access. It's about giving people unhindered access to a
website from various devices, such as web-enabled televisions and
mobile phones. 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 physically disabled people, a website 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 websites - although the consensus
had long been that the reference to "information services" includes
websites.
Any 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 website 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?
The best way to satisfy the legal requirement is to have your
site tested by disabled users. If a blind user can access and use
your site without difficulty, that is a good indication of legal
compliance. Ideally you should also have your site tested by users
with other disabilities, such as motor and cognitive disabilites
and other forms of visual impairment. However, if your budget is
limited, a blind user is likely to identify the widest range of
issues in your site.
Evidence of successful tests by disabled users could be
invaluable in the event of any legal challenge over your site's
accessibility.
Charities including
RNIB, AbilityNet and
Shaw Trust
offer testing services to suit a range of budgets (as do many
commercial firms). Remember that the results of such tests are
likely to require changes to your site - so budget for testing and
also further development work.
Testing your site against the Web Content Accessibility
Guidelines (WCAG) is also a valuable indicator of
accessibility. These guidelines were written by the Web
Accessibility Initiative (WAI) of the World Wide Web Consortium.
This standards-setting body, known as W3C. was founded in 1994
by Tim Berners-Lee, the man credited with inventing the web.
Version 1.0 of these guidelines was published in 1999. Version
2.0 of WCAG was published on 12th December 2008.
Conformance to WCAG should not be your primary goal and it
certainly should not your only goal - but it is likely to be the
first thing you check.
WCAG provides 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 WAI, a website must satisfy Priority 1 (Level A),
otherwise some users will find it impossible to access the site.
The WAI team considers that a website 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.
If your site falls below Level A it is almost certain that
disabled users will struggle to use the site. Different pages are
likely to exhibit different levels of accessibility but all main
pages (e.g. homepage, site registration page, shopping pages and
'standard' content pages) should, as a minimum, conform to Level A.
Always remember, though, that it is more important from a legal
perspective that disabled users can access and use the site -
which is why user testing is so important.
Guidance on commissioning an accessible website is available in
a document known as
PAS 78, a publication of BSI. A PAS is a publicly available
specification and PAS 78 offers practical, non-technical tips for
any organisation that is building a new site or reviewing an
existing one. Evidence that PAS 78 has been followed could help an
organisation in the event of a challenge under the DDA. In summer
2009, a full British Standard is expected to replace PAS 78. A
draft of the standard was published on 1st December 2008 for
consultation. See: Draft BS 8878
Although there is no case law on the UK Act's application to
websites, a case was brought in Australia in 1999 which did refer
to the WAI 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 Bruce Maguire, who is blind, against the
Sydney Organising Committee for the Olympic Games, known as SOCOG.
Maguire argued that the SOCOG website 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 websites 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
eventually see a similar case against a named company.
Accordingly, you should make sure your site complies at least
with Level A of WCAG 2.0 though Level AA is a better minimum
target and user testing is highly recommended. We believe
OUT-LAW.COM conforms to Level AA of WCAG 1.0 on most pages but
if you discover otherwise, please email our editor, struan.robertson@out-law.com.
We will be reviewing our pages in light of the publication of WCAG
2.0.
A quick and basic 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 building or reviewing a site, it is recommended that
you read PAS 78 as part of your early project planning.
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 Nielsen, based in the
US, is widely regarded as the guru of website usability. 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. Websites and intranets must follow usability
principles and make it easier for customers and employees with
disabilities to perform their tasks."
Contacts
Useful links
Australian case between Bruce Maguire and SOCOG:
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