Landmark accessibility ruling
OUT-LAW Radio, 01/02/2007
The disability discrimination ruling that could
change cross-border e-commerce, and why the Information
Commissioner is not like the traffic police.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio the weekly podcast that keeps
you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest new and in-depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee and coming up on this week's show
Struan Robertson reports on a disability discrimination case that
could have far reaching repercussions for US online retailers and
we ask why the information commissioner isn't more like the traffic
police.
But first the news.
- Online gambling firms will need permission to advertise in the
UK; and
- the European Commission proposes a Pan European medical records
system.
Online gambling operators outside
of Europe will have to seek government permission to advertise in
the UK. The government's reform of gambling law mandates the
seeking of permission in an attempt to crack down on rogue
operators. Bookmakers based outside the European economic area and
Gibraltar who wish to advertise in the UK will have to prove that
the country in which they operate has a licensing regime which
ensures fairness of gaming, as anti-crime measures and protects
children from exposure to gambling. Culture Secretary
Tessa Jowell told the Financial Times that a ban on purely
regulated websites could protect UK gamblers against bogus or rogue
site operators.
UK patients' medical records
could be shared across Europe in a European Commission scheme that
could compound controversy over the NHS patient record system. A
major new research funding plan from the Commission proposes a link
up between the health information systems of European countries.
Privacy advocates though fear that the potential problems inherent
in the UK wide health information system would only be compounded
by a Europe wide system. The Department of Health has faced a
barrage of criticism over its handling of the connecting for health
computer system and patients have been refused a vital opt out of
the system which ministers had promised.
That was this week's OUT-LAW
news.
Computers have revolutionised the
lives of many people with disabilities but still some organisations
fail to understand their legal obligations and make life harder
than it needs to be. OUT-LAW's Struan Robertson reports on one case
with a happy ending.
Struan
Robertson: There are many barriers that blind people face
that barely occur to the rest of us but technology has broken many
of them down particularly in the workplace, or so Sam [Latif]
thought, a project manager with Proctor & Gamble she wanted
better qualifications and applied to sit exams with the world's
best recognised body, the Project Management Institute or
PMI. Latif, an employee of Proctor & Gamble is blind and at
work she uses JAWS, a piece of software that converts text into
speech. But when she asked to use this software to take
PMI's four-hour computer based exam the company refused saying
there was a risk of cheating. They let her have longer to sit the
exam but said that instead of her familiar software she would have
to have the questions read to her by a stranger. Latif explained to
OUT-LAW that that's not how she is used to working.
Sam Latif: I
have never really felt comfortable other people reading to me. I
have never felt comfortable you know having to ask people again and
again if I didn't understand something and because I had been
working and studying for more than 10 years using computers and
audio speech to actually go backwards you know 12 years in time and
have someone read the exam out, I just found it really painful and
quite upsetting, you know. Technically it was possible to do the
exam in the way that I wanted but because of some people's
attitudes I wasn't able to do it and I had to do it in this way
that I felt very uncomfortable with so, I was upset and cross and
you know quite scared because I wasn't sure how it would actually
turn out in the end because I haven't actually been doing something
like this.
Struan
Robertson: Although Latif passed she sued PMI under the
Disability Discrimination Act and won. An employment tribunal in
Reading reasoned that the test centre commissioned by PMI could
have installed JAWS on one of its stand-alone computers and let
Latif sit the exam on that without risk of cheating. Given that
Latif runs JAWS so that it reads text 60% faster than a human voice
she would have then been able to complete the exam in significantly
less time than the eight hours that it took with a reader. The
tribunal awarded Sam £3,000 pounds for injury to her feelings. I
asked how she felt when she got that result.
Sam Latif:
Relieved I think was the first thing I just felt that this whole
trauma had been going for many years now. It reminded me of when I
was at school and when I first started University when things
didn't work with my software when I wasn't able to access my
textbooks at school or University, never having enough information
to do my course work or my exams. But things have changed over so
many years, that was old news, you know that’s what used to happen
in the past and then to be in a situation where day-to-day in my
normal day job to be able to be a global project manager and use,
you know, my talking software to help me everyday and then finding
that, you know, for the official exam when I was studying for it
and to sit the exam I couldn't actually work in the way that I'm
used to now. It was really like quite tricky.
Struan
Robertson: This was a significant case because it was the
first to rule against an overseas company that has no presence in
the UK. This could set a precedent for websites based abroad that
sell to UK citizens. Until now it was thought that only UK based
sites were covered by the duty but Latif's case makes it possible
that a court would punish a US based website selling in the UK if
it fails to make its site accessible to those in the UK with
disabilities. Latif had vital support in her long case from the
Disability Rights Commission. Safraz Khan, senior legal officer at
the DCR, says that this case has the potential albeit untested to
bind overseas web merchants.
Khan: People
ordering goods within Great Britain are likely to have them
delivered by whatever means that might be used by the company who
is selling those products via the website but the website itself
may not be accessible and in other circumstances a court might
determine that they are liable.
Matthew Magee:
The Information Commissioner's office has been talking tough of
late. Commissioner Richard Thomas has said that he would come down
harder than ever on those breaking data protection law and has
called for journalists to be locked up over legally squiffy
investigation techniques. But in one case of misuse of personal
information the tougher side has crumbled leaving victims asking
whether he is making an ass of the law. A Birmingham company called
B4U which runs B4Usearch.com listed the personal details of people
without their permission. Those who complained and asked for it to
be taken down were told they would have to supply even more data to
the company which some were naturally reluctant to do. The
Information Commissioner issued an enforcement notice to the
company after receiving 1,600 complaints but when the date for
takedown passed further action was clearly necessary. Tim Trent was
one of the victims of the breach.
Tim Trent: I
looked at their website and I discovered that my details were on
it. That was a surprise to me and I wanted to remove the details
but the service for removing the details meant I had to give them
extra data like my mobile phone number and various other things
they didn’t hold on the file, and as you can imagine I was a little
wary of doing that because I actually felt that my data was going
to be abused if I added anything further to it. The investigating
officer contacted me and asked if he could have a statement from
me, a proper witness statement which I duly organised and submitted
to him and he expressed himself happy with. He was of the feeling
that an offence had been committed, a substantial offence, and it
was being committed from the 1st of August all the way through to
the time they removed the data and his opinion as an investigator
which obviously isn't a prosecutor but as an investigator was a
solid case for them to answer.
Matthew Magee:
The stage was set for action and a prosecution looked likely, but
in the past few days Trent has been told that no action will be
taken because the information has been removed from the website.
Trent, who is himself a privacy and data protection consultant, is
furious and wonders what would happen if all law enforcement
agencies took that approach. He reads from the letter he
received.
Tim Trent: The
Information Commissioner has carefully considered that it will be
appropriate to prosecute before you for that breach and concluded
that given the short period of a continuing breach and the fact
there is now compliance with the act in respect of the use of
electoral information prosecution would not be appropriate in
relation to this matter. Well I would like the traffic police to
deal with my speeding tickets that way too because if I brought my
car to a halt I'd have been a good boy before you had brought their
car to a halt they have obviously been good boys, they can go on
without a stain on their character and I can have a three penalty
point and a sixty quid fine.
Matthew Magee:
The Information Commissioner's office told OUT-LAW Radio that B4U
had complied following the commissioners actions it said that it
was not afraid to prosecute people in organisations that continue
to breach orders and that the office hoped that it would not be
seen as organisation that was afraid to prosecute because it does
take prosecutions. Raj Banga is the owner of B4U. He said he
doesn't even know when the information was taken down.
Raj Banga: I
haven't got a date to hand, I don't have it handy at the moment but
as far as I know we complied with them be it a few weeks late but
that was due just to technical difficulties we experienced here and
you know as far as I know we've done our duty and so have they.
Matthew Magee:
So is the Information Commissioner's office toothless? Banga
certainly doesn't seem to think so. Do you think companies that
breached the enforcement order should be prosecuted for it?
Raj Banga: I
think each case has to be looked at separately, you can't group
every single company into the same bracket. Each has their own
circumstances but like I said you would have to take it up with
them.
Matthew Magee:
Trent thinks that the dropped case undermines the whole data
protection cause.
Tim Trent: The
problem is the lack of follow through, because if he doesn't follow
through then no examples are made and there are plenty of other
people who will use it in a potentially cynical manner and will
also see the fact that before you had not been prosecuted therefore
they can do as they please and when they get it wrong, if somebody
ever tells the Information Commissioner about it, it's a bit like
been told off by your favourite uncle.
That's all we have time for this week. Thanks for listening. Why
not get in touch with OUT-LAW Radio? Do you know a technology law
story? We would love to hear from you on radio@out-law.com.
Make sure you tune in next week but for now thanks for listening
and goodbye.
OUT-LAW Radio was
produced and presented by Matthew Magee for international law firm
Pinsent Masons.
