Computer Law & Security Report (2005) 21, 298e309

WEB SITE DESIGN AND DISABILITY REGULATION

Web site design and the Disability DiscriminationAct 1995*

Stephen Mason a, Catherine Casserley b

a Barrister St Paul’s Chambers, Londonb Disability Rights Commission, UK

Abstract This paper considers the application of Disability Discriminationlegislation to the design and presentation of Internet web sites and takes accountof the revised Code of Practice on Rights of Access e Goods, Facilities, Services andPremises published by the Disability Rights Commission in 2002.ª 2005 Stephen Mason and Catherine Casserley. Published by Elsevier Ltd. All rightsreserved.

‘‘You know, the Internet is a wonderful thing forthe disabled. You should be proud of your achieve-ment in making the life of the disabled so muchbetter.’’

Rabbi Lionel Blue, OBE at the Annual Dinner ofthe British Computer Society held on 12 Novem-ber, 2001 [This is the author’s recollection of theactual words used by Rabbi Lionel Blue].

The Internet has been hailed by many witha technical background as a truly ground-breakingachievement. In addition, some commentatorshave remarked that human beings will alter theway they live as a direct result of the new

* This article has been updated in the light of the revised Codeissued by the Disability Rights Commission. Otherwise, little hasaltered in respect of good web site design since publication ofthe first version of this article in 2001. This article may havebeen up-dated but the problems remain the same.

0267-3649/$ - see front matter ª 2005 Stephen Mason and Catherdoi:10.1016/j.clsr.2005.04.007

technology. Such extravagant claims have beenmade about every form of new technology, fromthe invention of the telegraph, the coming of therailways and the advent of the aeroplane. Whilst itis true that the introduction of new technologydoes affect the way we live to a certain extent, itrarely lives up to the wilder claims made for it byits more enthusiastic devotees. The web makesa difference to the life of an able bodied personinsofar as they choose to use the facilities or not.An able bodied person can use the web tocorrespond, seek information and, if they wish,buy and sell goods and services.

For a disabled person however, the Internet canmake a significant difference to their life. To thisend, the aim of the government to enable as manypeople as possible to use the Internet is to bewelcomed. In some instances, the Internet enablesmany people with differing degrees of disability to

ine Casserley. Published by Elsevier Ltd. All rights reserved.

Web site design and disability regulation 299

enrich their lives to a degree that no amount ofextra home help could possibly achieve. For in-stance, software is capable of enabling blind andpartially sighted people to listen to what is writtenon a web site. People with poor sight can changethe size of the font on a page (just as any ablebodied person can). If you are colour blind, youcan, to a certain extent, alter the colour schemeon a web site. If you are blind or partially sighted,you no longer have to telephone the shop to bookan appointment to go shopping. Instead of takinga day out to do the weekly shop, you can sit downin front of a screen and order goods online andhave them delivered at some stage in the future.Gone can be the days where shopping for disabledpeople is an excruciating experience where, forinstance, the supermarket provides a member ofstaff who is a vegetarian to pick goods for a meateater. For the first time, many blind and partiallysighted people can take advantage of the up-to-the-minute news and sports results that are nowavailable on-line. In addition, the inclusion ofrailway and bus timetables in web sites enableblind and partially sighted people to be moreconfident when they travel, and to make ticketreservations independently and easily.

A. The problem with web site design

However, many web sites that operate on theInternet have not been designed with the disableduser in mind. There are a range of problems thatcause users with a disability to move away frompopular web sites to look for a site that has madean effort to accommodate people with disabilities.Problems can include text and colour schemes thatare fixed, which means neither the text or thecolour scheme can be altered by the viewer ontheir screen. Other examples include images thathave not been provided with a description of theimage in text for blind and partially sightedpeople, and web sites that rely on new technolo-gies that are not available to all users.

B. The law

Politicians have provided a remedy for the lack ofconsideration for disabled users, namely the Dis-ability Discrimination Act 1995 (‘‘the Act’’). TheAct has been implemented in stages, and thecrucial date for any organization with a web sitewas 1 October 1999, when Sections 21(1), (2)(d),(4), (6) and (10) were brought into force by The

Disability Discrimination Act 1995 (Commence-ment Order No 6) Order 1999 SI 1999 No 1190(c. 33). Sections21(3) and (5) werebrought into forceon 26 April 1999 by the same statutory instrument.

The first Court of Appeal case to consider thegoods and services provisions of the Act hasconsidered the overall principles of this part ofthe Act. Roads v. Central Trains Limited [2004]EWCA Civ 1541 concerned Mr Roads, who isdisabled and dependent upon an electric wheel-chair for mobility, and who had difficulty in gainingaccess to one of the platforms at Thetford railwaystation. He brought a claim alleging breach of theDisability Discrimination Act. The claim was dis-missed at first instance on the basis that it was notreasonable for the respondent to provide him withan accessible taxi to take him to the platform herequired. Mr Roads appealed to the Court ofAppeal, which allowed the appeal and held thatthere had been discrimination. Whilst the claimwas predicated upon very particular facts (forexample, the respondent had stated that costwas not an issue in this case) the Court consideredthe reasonable adjustment provisions of the Act,and emphasised its inclusive aims. Lord JusticeSedley said at paragraph 13:

‘‘[This is because] the policy of the Act, as I wouldaccept, is what it was held to be by Mynors Ch(albeit by way of restricting the duty) in In re HolyCross, Pershore [2002] Fam 1, x105: ‘to provideaccess to a service as close as it is reasonablypossible to get to the standard normally offered tothe public at large’. He went on to say, atparagraph 30, ‘[T]he policy of the [1995] Act isnot a minimalist policy of simply ensuring thatsome access is available to the disabled: it is, sofar as reasonably practicable, to approximate theaccess enjoyed by disabled persons to that en-joyed by the rest of the public’’.

This approach was followed in the case of Ross v.Ryanair Ltd and Stansted Airport Ltd [2004] EWCACiv 1751 in which it was held to be unlawful tocharge for the provision of a wheelchair atStansted airport to transport the claimant to thedeparture point for his aeroplane.

Before looking at the provisions of Section 21, itmay be pertinent to remind the reader that underthe provisions of Section 19, it is unlawful fora provider of services to discriminate againsta disabled person:

(a) in refusing to provide, or deliberately notproviding, to the disabled person any servicewhich he provides, or is prepared to provide,to members of the public;

300 S. Mason, C. Casserley

(b) in failing to comply with any duty imposed onhim by Section 21 in circumstances in which theeffect of that failure is to make it impossibleor unreasonably difficult for the disabledperson to make use of any such service;

(c) in the standard of service which he provides tothe disabled person or the manner in which heprovides it to him; or

(d) in the terms on which he provides a service tothe disabled person.

Section 19(3) goes on to provide examples of theservices which Section 20 and 21 applies. Sub-section (b) applies to ‘‘access to and use of meansof communications’’ and sub-section (c) applies to‘‘access to and use of information services’’. Bothof these sub-sections clearly apply to the designand functioning of a web site on the Internet.

To accompany the Act, there is also a Code ofPractice e Access to Goods, Facilities, Servicesand Premises, a revised edition issued by theDisability Rights Commission in 2002. The Code isadmissible as evidence in accordance with Section53(5) of the Act, and Section 53(6) provides thatwhere any provision of the Code appears to berelevant to any question arising in any proceedingsunder the Act, the tribunal or court must take itinto account in determining the question. Therevised Code contains the following illustrationfrom paragraph 2.17:

‘‘An airline company provides a flight reservationand booking service to the public on its website.This is a provision of a service and is subject to theAct.’’

The Code is available on the Disability RightsCommission web site at: www.drc-gb.org.

1. The services affected by Part IIIof the act

The scope of services, definition of a provider andthe extent of liability is set out in Section 19(2),subject to the exceptions set out in Section 19(5)in relation to education and the use of any meansof transport, although the Disability DiscriminationBill, currently before Parliament, and regulationsmade under it will largely remove this exemption.In addition, it should be noted that the SpecialEducational Needs and Disability Act 2001 amendsthe Act so that most pre and post 16 educationproviders have obligations not to discriminate andto make reasonable adjustments. These provisionshave come into force in stages from September2001, and they mean that those education pro-

viders with web sites will need to ensure that theirdisabled students can obtain access to the websites effectively.

The provision of services includes ‘‘the provisionof any goods or facilities’’. A person is a provider ofservices if they are concerned with the provision,in the United Kingdom, of any service to membersof the public. This can be in the private, public orvoluntary sectors. In addition, it does not matterwhether the service is provided at no cost to theuser, or in return for a payment. The Code givesa non-exhaustive list of the organizations thatprovide services in paragraph 2.14. This list makesit explicitly clear that the majority of organiza-tions are included in the definition.

2. Who is responsible under the termsof the Act?

Paragraph 2.15 of the Code indicates that everyindividual, from the managing director to the mostjunior employee is liable under the Act. In addi-tion, it does not matter whether the employee is infull or part-time work, and whether they are ina permanent or temporary post. Sole traders, firms,companies and partnerships are all liable, as arethe self-employed, employees, volunteers, con-tractors and agents.

3. Who has rights under the Act?

The provisions of the Act protect both adults andchildren. Sections 1 and 2, taken together withSchedules 1 and 2, set out the position in detail.Section1(1)provides thatdisabledperson isapersonwho ‘‘has a physical or mental impairment whichhas a substantial and long-term adverse effect on hisability to carry out day-to-day activities.’’

4. What is meant by discrimination?

The way in which a provider of a service candiscriminate against a disabled person is set out inSections 20(1) and 20(2). Section 20(1) reads asfollows:

20(1): For the purposes of Section 19, a providerof services discriminates against a disabledperson if:

(a) for a reason which relates to the disabledperson’s disability, he treats him lessfavourably than he treats or would treat

Web site design and disability regulation 301

others to whom that reason does not orwould not apply; and

(b) he cannot show that the treatment inquestion is justified.

With respect to the duty under the terms ofclause 20(1), a service provider is required tojustify that the less favourable treatment is war-ranted. Section 20(3) permits less favourabletreatment only if:

(a) in the opinion of the provider of services, oneor more of the conditions mentioned in sub-section (4) are satisfied; and

(b) it is reasonable, in all the circumstances of thecase, for him to hold that opinion.

To establish whether justification is reasonable,the test is as follows:

� Subjective e what did the service providerbelieve? and

� Objective e did the service provider reason-ably hold that belief?

It is indicated in the Code at paragraph 7.8that a service provider does not have to be anexpert on disability. However, to justify lessfavourable treatment, a service provider is ex-pected to take into account all the circumstan-ces, including the opinion of the disabled person,the range of information that is available to helpreach a decision and any further advice which itis considered reasonable to seek. This includesthe need to change a practice, policy or pro-cedure which makes it impossible or unreasonablydifficult for disabled people to take use of itsservices and the alteration of which would re-move the reason for the treatment. The serviceprovider should consider what adjustments it canmake that are reasonable in the circumstances ethe aim should be to make the adjustment, ratherthan attempt to justify less favourable treatment.Once a disabled person can show that they havebeen treated less favourably for a reason relatingto their disability, it will be for the serviceprovider to show that the action they took wasjustified.

Of the conditions set out in subsection 4 of theAct, the only reason that could be construed asbeing relevant in relation to the design and use ofa web site is subsection (b), where a ‘‘disabledperson is incapable of entering into an enforceableagreement, or of giving informed consent’’. It isdifficult to imagine how this justification can applyto the design of a web site, although some may try

to argue that the provision of the service on dif-ferent terms was necessary to provide the serviceat all, although the use of the word ‘‘necessary’’imports a high threshold.

C. Duty of providers of services tomake adjustments

A service provider can also discriminate againsta disabled person as a result of the terms set out inSection 20(2), as follows:

20(2): For the purposes of Section 19, a providerof services also discriminates against a disabledperson if:

(a) he fails to comply with a Section 21 dutyimposed on him in relation to thedisabled person; and

(b) he cannot show that this failure tocomply with that duty is justified.

Further, the relevant parts of Section 21(1)provide:

21(1): Where a provider of services hasa practice, policy or procedure which makesit impossible or unreasonably difficult fordisabled persons to make use of a servicewhich he provides, or is prepared to provide,to other members of the public, it is his dutyto take such steps as it is reasonable, in allthe circumstances of the case, for him tohave to take in order to change that practice,policy or procedure so that it no longer hasthat effect..21(4): Where an auxiliary aid or service (forexample, the provision of information on audiotape or of a sign language interpreter) would:

(a) enable disabled persons to make use ofa service which a provider of servicesprovides, or is prepared to provide, tomembers of the public, or

(b) facilitate the use by disabled persons ofsuch a service

it is the duty of the provider of that service totake such steps as it is reasonable, in all thecircumstances of the case, for him to have totake in order to provide that auxiliary aid orservice.

The terms practice, policy and procedure relateto the way in which a service provider operates

302 S. Mason, C. Casserley

its business or provides a service. The meaningof ‘‘practice’’, ‘‘policy’’ and ‘‘procedure’’ areexplained in paragraph 5.6 of the 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 Section 21,a provider of services is obliged to take a numberof (reasonable) steps, the following being partic-ularly relevant to web sites:

� to change a practice, policy or procedure whichmakes it impossible or unreasonably difficult fora disabled person to use its service, and

� to provide, by the terms of Section 21(4) anauxiliary aid or service if it would enable ormake it easier for disabled people to make useof the service supplied by the service provider.

The above steps can refer to the use of a website in the same way as it refers to the quality ofservice provided in a physical environment.

The duties contained in Section 21 are ‘‘anti-cipatory’’ in nature, as paragraph 4.14 of the Codepoints out, and the duty is owed to disabled peopleat large, because disabled people are a diversegroup with different requirements which serviceproviders should consider (paragraph 4.15). Thereasonable adjustment duty was addressed for thefirst time by the Court of Appeal in the case ofRoads v. Central Trains Limited, cited above,where Lord Justice Sedley said:

‘‘.Section 21 sets out a duty resting on serviceproviders. They cannot be expected to anticipatethe needs of every individual who may use theirservice, but what they are required to think aboutand provide for are features which may impededpersons with particular kinds of disability e im-paired vision, impaired mobility and so on’’.

This is a continuing duty, which means thatserviceprovidersneed tokeep thedutyunder reviewat all times. As a result, the Code, in paragraph 4.19,suggests that the service providers should considerthis to be an evolving duty, and not one that shouldbe considered once and then forgotten.

D. What is meant by reasonable steps?

The Act does not set out the factors that shouldbe taken into account to establishing whether

a provider of services has taken reasonable stepsto make suitable adjustments. The Code suggests,at paragraph 4.21 that the reasonable steps to betaken by a particular service provider will dependon:

� the type of services being provided;� the nature of the service provider and its size

and resources;� the effect of the disability on the individual

disabled person.

Paragraph 4.22 of the Code provides a non-exhaustive list of factors to be taken into accountwhen considering what is reasonable:

� whether taking any particular steps would beeffective in overcoming the difficulty thatdisabled people face in gaining access to theservice in question;

� the extent to which it is practicable for theservice provider to take the steps;

� the financial and other costs of making theadjustment;

� the extent of any disruption which taking thesteps would cause;

� the extent of the service provider’s financialand other resources;

� the amount of any resources already spent onmaking adjustments;

� the availability of financial or other assistance.

Whilst it is more likely to be reasonable thata service provider with substantial financial re-sources will have to make physical adjustmentsthat may be expensive, it is difficult to believethat any provider of services could argue povertyas an excuse for not ensuring their second or thirdgeneration web site should not be designed for theuse of both disabled and able people.

The employment provisions of the Act makesimilar provision for the duty to make reasonableadjustments. In considering this issue, The Em-ployment Appeal Tribunal has stressed the objec-tive nature of the test of whether the duty to makeadjustments has been discharged by the employer,and it is clear that the Tribunal puts itself in theshoes of the employer to decide whether or not itthinks other adjustments should have been made,Morse v. Wiltshire CC [1998] IRLR 352 EAT. It istherefore likely that when determining whether ornot a service provider can afford any changes, thecourt will be looking objectively at this, andconsidering whether, for example, the serviceprovider’s profits would allow it to make suchadjustments.

Web site design and disability regulation 303

In addition, the governing body of the web, theWorld Wide Web Consortium, has a Web Accessi-bility Initiative, which includes Web Content Ac-cessibility Guidelines (www.w3.org/TR/WCAG10).The British Web Design and Marketing Associationfounded another organization, the Usability andAccessibility Working Group. See also the Euro-Accessibility Consortium (www.euroaccessibility.org) which launched an initiative with W3C forhelp formulate a harmonised methodology forevaluating web site design. Many web designersfail to design web sites with these guidelines inmind, although it is probable that many webdesigners may not even be aware of the guidelines.It is likely, however, that courts dealing with DDAcases relating to websites will be considering thesestandards. A common failure with many web sitesthat prevents disabled users from using a web site,is the failure to fill in the ‘‘tags’’ on the pages thatdescribe an image. A visually impaired visitor toa web site uses a screen reader to read the text onthe web site aloud. The ‘‘tag’’ field can havea description of the image, for instance ‘‘Field ofsunflowers’’. Many web designers fail to add a tagto such images, which means the visually impairedvisitor hears the word ‘‘image’’ only, which ismeaningless. In addition, the words ‘‘Field ofsunflowers’’ may also be relatively meaningless,because it might be an image of a photograph ora painting. The sun might be shining or it may beraining. Even such a tag as ‘‘Field of sunflowers’’may fail to describe the image adequately, al-though it has to be accepted that there might bea limit to the amount of description to give animage.

Guidance on what reasonable adjustmentsshould be made in practice, or the auxiliary aidsor services that should be provided, are set out inchapter 5 of the Code. Both paragraph 5.23, inrelation to people with a hearing disability, andparagraph 5.26, in relation to people with a visualimpairment, include access to web sites to dis-abled people as examples that service providerscould provide.

E. Failure to make reasonableadjustments

The combined effect of the provisions of Section19(1)(b), 20(2) and 21(10) provide that a serviceprovider must comply with the duty to makereasonable adjustments to avoid committingan act of unlawful discrimination. A disabledperson can initiate a claim against a service pro-vider if:

� the service provider fails to do what is re-quired; and

� that failure makes it impossible or unreason-ably difficult for that disabled person to obtainaccess to any service provided by the serviceprovider to members of the public; and

� the service provider cannot show that sucha failure is justified.

In order for a failure to make to make a reason-able adjustment to be justified, the failure mustbe necessary so as not to endanger the health orsafety of any person, in accordance with Section20(4) (a) or the disabled person must be incapableof entering into an enforceable agreement or ofgiving informed consent as set out in Section 20(4)(b) e neither of which would seem to be likely inrelation to web sites.

F. Research into poor web site design

1. Royal National Institute of the Blind

The Royal National Institute of the Blind(‘‘RNIB’’) carried out one of the first researchprojects in August 2000, testing 17 web sites ofhigh street stores and banks against the followingcriteria:

� Whether the text was legible. Importantfactors to consider were the text and back-ground colours and whether they contrastedwell. Patterned backgrounds are particularlydifficult to read against.

� Whether images had alternative text to providea verbal description of the image for thosevisiting the sites that use speech synthesissoftware.

� If frames were used, whether a ‘‘noframes’’tag is offered to provide a link to a frames-freeversion of the web site. It is possible that someblind and partially sighted people use softwarethat cannot read frames. In addition, if frameswere used, whether they had titles.

� Whether the web site was easy to navigate.Graphical navigation links need to be sup-ported by alternative text, and the destinationof the link should be obvious. For instance, ifa link reads ‘‘click here’’, where the link ispointing is not obvious to a blind or partiallysighted visitor.

� Did all the web pages pass the ‘‘Bobby’’ test, asit was called at the time of the test? TheCentre for Applied Special Technology(www.cast.org/bobby) created an automated

304 S. Mason, C. Casserley

checking package, with the name ‘‘Bobby’’.Although this software does not consider everyaspect of a web site, nevertheless it testedmost web sites for basic design featuresthat may cause problems for disabled visitors.It should be noted that there are a range ofautomated web accessibility testing toolsthat web site designers should consider using,and this test is just one of those that areavailable.

The test results were published in ‘‘Get themessage online’’, Campaign Report 15 (‘‘Re-port’’), by Julie Howell, in August 2000, and wasreprinted in 2001 (Copies of this Report are avail-able at £5 from the RNIB Customer ServicesDepartment). In summary, of the financial institu-tions visited (Abbey National, Alliance and Leices-ter, Nat West and HSBC), all failed the assessment,even though, as was pointed out by Julie Howell,‘‘banking is regarded as a universal essentialservice’’. The supermarkets (Asda, Marks andSpencer, Safeway, Sainsbury’s, Somerfield, Tesco)achieved no better, although Marks and Spencerand Somerfield passed the ‘‘Bobby’’ test. The twofast food sites (Pizza Hut and Pizza Express) wereparticularly poor and failed all the tests. Theclothing and retail stores (Debenhams, DorothyPerkins and Evans) all failed the tests, and of theremaining web sites visited, WH Smith and thePost Office, neither helped disabled visitors to anyextent.

The Report made the following recommenda-tions as a result of the findings:

� Web site designers should take responsibility toensure everyone, regardless of their ability ordisability, can read their designs.

� Organizations who have web sites, plan toproduce a web site or intend to develop secondand third generation web sites should recognizethe needs of blind and partially sighted visitors.

� Blind and partially sighted people were urgedto get in touch with organizations direct toraise the issues if web sites were poorlydesigned.

� Companies featured in the Report were en-couraged to acknowledge the needs of disabledpeople and take steps to improve the design oftheir web sites. Since this research waspublished, Tesco set out to build a web sitethat was user-friendly to disabled people. Thenew web site was launched earlier this year, atwww.tesco/access. (Further information aboutthe RNIB Campaign for Good Web Design isavailable from www.rnib.org.uk/wac.)

2. Formal investigation conducted bythe Disability Rights Commission

On 28 March 2003, the Disability Rights Commissionannounced a formal investigation into websiteaccessibility for disabled persons. In the introduc-tion to the Report ‘‘The Web Access and Inclusionfor Disabled People’’, it was pointed out thatdisabled people ‘must frequently overcome addi-tional obstacles before they can enjoy the fullrange of information, services, entertainment andsocial interaction offered by the Web’ and pointedout that the web has enormous potential fordisabled people. Further, the simple point wasmade, that ‘‘irresponsible and inconsiderate de-sign, on the other hand, not only puts disabledusers at a significant disadvantage, but can makelife unnecessarily difficult for everyone, whetherdisabled or not.’’ Research was carried out by CityUniversity to ‘‘systematically evaluate the extentto which the current design of websites accessedthrough the Internet facilitates or hinders use bydisabled people in England, Scotland and Wales,identifying any recurrent barriers.’’ (page 19).

A ‘User Panel’ was established, which comprised50 disabled people, including people with a varietyof impairments that were most affected by prob-lems relating to the accessibility of web sites:blindness, partial sight, dyslexia, profound deaf-ness, including people who are Sign Languageusers, and hearing impairment and physical impair-ments that affect access to the Web, such as lack ofcontrol of arms and hands, tremor or lack ofdexterity in hands and fingers. Panel membershipcomprised both sexes, all ages and different levelsof experience with computers and the Internet,including the most widely used types of technologythat is bought to help navigate around the web.

The research collected data from five sources(pages 19 and 20):

� Meetings with stakeholder groups, to identifythe underlying barriers to web accessibility.

� Focus groups for each of the impairmentgroups, to identify the specific concerns ofparticular groups of disabled people accordingto impairment.

� Automated testing of 1000 home pages, toestablish the current state of website accessi-bility in Great Britain. Five sectors wererepresented: government and official informa-tion; business; e-commerce; entertainmentand leisure; web services, such as searchengines, discussion boards, portals and Inter-net service providers.

Web site design and disability regulation 305

� In-depth user and expert testing of 100websites, to establish the actual problems thereal disabled users have in using websites.

� A controlled study of the use of a sample ofsix websites (three with relatively high acces-sibility ratings and three with low acces-sibility ratings) by blind and non-disabledpeople, to differentiate between the effectsof inaccessible design and those of the impair-ment itself.

The findings of this Report provided dismalreading:

� Most web sites (81%) failed to satisfy eventhe most basic Web Accessibility Initiativecategory.

� Few web sites (19%) even complied with thelowest priority check-points used to demon-strate how accessible they were.

� Blind and partially sighted users in particular,who use screen readers to obtain access to theweb, suffer the greatest disadvantages wherethe design of a web site does not take fullaccount of their needs.

� Even though most of those organizations thatcommissioned web sites claimed they wereaware of the needs of disabled people, there isvery little evidence of this awareness beingtranslated into effective web site design. Eventhis finding is questionable, because the re-sponse rate to a questionnaire sent to thosecommissioning web sites and to web sitedesigners was very low (nine per cent fromthose commissioning web sites and six per centfrom web site designers (page 35)).

There are a number of diagnostic tools avail-able to help the design of a web site withdisabled people in mind, as well as automatictesting software. Unfortunately, the use of suchsoftware and tools does not mean a serviceprovider will have fulfilled their duty to makereasonable adjustments if the problems remain.Most of the tools require human judgment, and itwas noted in the Report that as many as 45% ofproblems experienced by the user group wouldnot have been detected without the web sitebeing tested by users (page 12). The conclusionreached by the Report was that automaticchecks alone do not predict the way a user willinteract with a web site. That means many issuesrelating to the ability of a disabled person touse the web site effectively will go undetected.The Report reached the conclusion, on page 33,that:

‘‘This leads to the inescapable conclusion thatmany of the problems encountered by users are ofa nature that designers alone cannot be expectedto recognize and remedy. These problems can onlybe resolved by including disabled users directly inthe design and evaluation of websites.’’

In addition, although the companies that pro-duce operating software and browsers providea certain number of features that can help a dis-abled person when they use the web, many are notaware of them or do not know how to use them.This is a problem that must be overcome withtraining and better design of operating systemsoftware. Further, the cost of products that assistdisabled people, such as screen readers andmagnifiers, tend to be expensive. This means thatusers do not always up-date such products, and ifa web site has been designed to incorporate thelatest up-date in such technology, the disableduser will not benefit from the enhanced web sitedesign. Training in the use of such technology israre, and it is generally considered by the disabledcommunity that the training materials that accom-pany the products do not meet the needs of theusers (page 16, 4.2).

The Report set out a number of recommenda-tions, some of which apply to the design of websites, some apply to how web sites are tested,whilst others make further suggestions to govern-ment. These recommendations were set out in thechapter ‘Summary of Findings and Recommenda-tions’ in number order, and later set out again inthe chapter entitled ‘Conclusions and Recommen-dations for Achieving Useability’:

� Recommendation 1: Website commissionersshould formulate written policies for meetingthe needs of disabled people.

� Recommendation 2: Organizations which pro-vide and oversee education and training fordevelopers, including the vendors of web-authoring tools, should promote an under-standing that good development practiceentails attending, and responding, to the needsof disabled people.

� Recommendation 3: Website developersshould accept that good practice entailsattending and responding to the needs ofdisabled people.

� Recommendation 4: The Government shouldraise awareness, in the public and privatesector, and in the relevant professionaland other occupational groups, of the Webaccessibility needs of disabled people and ofthe actual cost of meeting those needs.

306 S. Mason, C. Casserley

� Recommendation 5: Website developers shouldinvolve disabled users from an early stage inthe design process.

� Recommendation 6: In accordance with theGuidelines, website developers should not relyexclusively on automated accessibility testing.

� Recommendation 7: Developers of automatedaccessibility checking tools should enhancetheir functionality to make them more usefulto website commissioners and website devel-opers.

� Recommendation 8: The Government shouldfacilitate the development of best practiceguidance for accessible website developmentand ongoing maintenance and thereafter pro-mote a formal accreditation process.

� Recommendation 9: Organizations of and fordisabled people should facilitate the enhance-ment of the skills required by disabled peopleto make full use of the Web, since they areuniquely placed to offer impairment-specific advice on these matters to those whoneed it.

� Recommendation 10: Developers of operatingsystems and browsers should take steps toensure that accessibility options are easier todiscover, understand and select.

� Recommendation 11: The designers and pro-viders of assistive technology should enableand encourage users to keep their products upto date.

� Recommendation 12: In line with its commit-ment to ‘‘bridge the digital divide’’, theGovernment should provide the funding re-quired to enable access to appropriate assistivetechnology for all those who need it, and topromote its better use.

� Recommendation 13: Existing health, socialand rehabilitation services with responsibilityfor assessing their clients’ needs for physicalaids attend, and respond, to the Web accessi-bility needs of disabled people.

� Recommendation 14: Those professionalbodies, colleges and universities involved intraining key frontline personnel, such as in-formation and computer technology trainersand librarians, should provide or review aware-ness and equality training in relation tocomputer and Web accessibility issues fordisabled people.

� Recommendation 15: The Web AccessibilityInitiative should give serious consideration tothe proposals by City University at Appendix 2of this report for extending the scope of theGuidelines to address limitations identified inthe course of this investigation.

G. Legal action

No legal action has been taken in the UnitedKingdom to date in relation to the poor design ofweb sites. RNIB says that it has considered takingup a number of cases against service providerswith regard to their web sites, but when RNIBraises the compliance issues under the Act, com-panies have tended to alter their web site to makeit accessible, rather than resists legal action. It didissue proceedings in one case, which settled onconfidential terms. This confirms how easy it is tomake the necessary changes.

The Disability Rights Commission can also fundrepresentation for individuals, where it believesdiscrimination has occurred. Furthermore, underthe provisions of the Disability Rights CommissionAct 1999, it has the power to instigate formalinvestigations into sectors, such as the World WideWeb, where it believes that discrimination istaking place.

1. Australia

Mr Bruce Maguire made a complaint to the HumanRights and Equal Opportunities Commission (‘‘theCommission’’) in Australia under the provisions ofthe Disability Discrimination Act 1992, decisionH 99/115 decided on 24 August 2000. Mr Maguire,who is blind, submitted a complaint on 7 June 1999that he was unlawfully discriminated against by theSydney Organising Committee for the OlympicGames (‘‘the Committee’’). He claimed unlawfuldiscrimination for failure to provide Braille copies ofinformation to order tickets, Braille copies of thesouvenir program and failure of the Committee toprovide a web site to which he could obtain access.

In its defence, the Committee argued that thedevelopment of a web site was not a ‘‘service’’under the provisions of Section 24 of the DisabilityDiscrimination Act 1992, which reads as follows:

24: Goods, services and facilities(1) It is unlawful for a person who, whether for

payment or not, provides goods or services,or makes facilities available, to discrimi-nate against another person on the groundsof the other person’s disability or a disabil-ity of any of that other person’s associates:

(a) by refusing to provide the other personwith those goods or services or to makethose facilities available to the otherperson; or

(b) in the terms or conditions on which thefirst-mentioned person provides the otherperson with those goods or services or

Web site design and disability regulation 307

makes those facilities available to theother person; or

(c) in the manner in which the first-mentionedperson provides the other person withthose goods or services or makes thosefacilities available to the other person.

(2) This section does not render it unlawful todiscriminate against a person on the groundof the person’s disability if the provision ofthe goods or services, or making facilitiesavailable, would impose unjustifiable hard-ship on the person who provides the goodsor services or makes the facilities available.

In considering the nature of the web site, theInquiry Commissioner, The Hon William Carter QCpointed out on page 8 of his Decision that ‘‘TheInternet is now a well established phenomenon,its capacity to store information of immenseproportions to which one can have access is a factof life. The respondent in creating its own website sought to include in it a considerable body ofinformation to which any person could haveaccess.’’ The web site intended to act as a sourceof information for use across the world. It wasclear that the web site was a service relating toentertainment, as defined by Section 4, and itwas determined that the provisions of the Dis-ability Discrimination Act 1992 applied to theCommittee’s web site. As a result, the failure bythe Committee to provide a web site that wasavailable to be used by a person blind from birthwas unlawful in that it constituted a breach ofSection 24, because the web site (a) did notinclude alternative text on all the images andimage maps links, and the disabled user could notobtain access to (b) the Index to Sports from theSchedule page or (c) the Results Tables. Thediscrimination was determined to be direct dis-crimination, within the meaning of Section 5,although the Commissioner also decided that ifMr Maguire was not discriminated directly in theterms of Section 5, it could be found that indirectdiscrimination had occurred in terms of Section 6.

The Committee also argued that changing theweb site would impose unjustifiable hardship, inaccordance with Section 11, which provides:

11: Unjustifiable hardshipFor the purposes of this Act, in determiningwhat constitutes unjustifiable hardship, allrelevant circumstances of the particular caseare to be taken into account including:

(a) the nature of the benefit or detrimentlikely to accrue or be suffered by anypersons concerned; and

(b) the effect of the disability of a personconcerned; and

(c) the financial circumstances and the esti-mated amount of expenditure required tobe made by the person claiming unjustifi-able hardship; and

(d) in the case of the provision of services, orthe making of available facilities e anaction plan given to the Commissionunder Section 64.

The Commissioner, in considering the applica-tion under Section 11, was required to makea decision based on the evidence of expertwitnesses. It appears from the discussion of theprocedural points by the Commissioner that theCommittee failed to fully co-operate in the pre-liminary stages of the action. This delay wasevidenced by a number of points listed by theCommissioner on page 22 of his Decision. Inaddition, the expert witnesses appearing on behalfof the Committee in relation to the Section 11argument were not able to avoid the obviousweaknesses in their evidence. In reachinghis judgment on this point, the Commissionerpointed out, on page 19 of his Decision, that theCommittee:

‘‘never seriously considered the issue [whether thecorrection of the web site should be carried out]and only when the hearing was imminent did itattempt to support its rejection of the complai-nant’s complaint by resort to a process which wasboth inadequate and unconvincing.’’

The Commissioner took the following factorsinto account in reaching the conclusion that theCommission could not avoid liability for its breachof Section 24 by claiming unjustifiable hardship:

� If a web site was provided that could be usedby Mr Maguire and other ‘‘vision impaired’’persons, it would constitute a considerablebenefit. It was only right that he and othersshould obtain access to the same body ofinformation available to a sighted person inrelation to such an important event. Thebenefit was considerable and the detrimentto the Committee would be modest. If theCommittee had addressed the issue earlier inthe development of the site, the effort toimprove it would have been negligible.

� In assessing whether any suggested hardship isunjustified, it was important to consider thenature of Mr Maguire’s blindness and its effectin the particular context. Mr Maguire canminimise the effects of blindness when using

308 S. Mason, C. Casserley

the Internet, but could only do so on theCommittee’s web site if the information waspresented in a form that was easy to use.

� The Committee is a major agency that issupported by considerable financial infrastruc-ture, including government funding. Whilst noprecise assessment was made of the cost ofrectifying the problems on the web site, suchchanges were modest in relative terms.

� Under Section 11(d) the service provider canprepare and implement an action plan, givinga copy to the Commission under the terms ofSection 64. The Committee, from the timesof its formation and involvement in the SydneyOlympic Games as a service provider, was likelyto come into contact with persons with a dis-ability as defined in the Disability Discrimina-tion Act 1992. Had the Committee prepared andimplemented such a plan, it would have beenrecognised that Mr Maguire and those like himwould have to be catered for in the design ofthe web site. The Committee neither preparedsuch a plan nor presented a plan to theCommission. However, the Commissioner didnot draw any adverse inference on this issue.

The Commissioner decided that the complaintwas substantial, and determined:

� That the Committee engaged in conduct thatwas unlawful under Section 24 in that itprovided for the use of Mr Maguire a web sitewhich because of his blindness was to a signif-icant extent inaccessible; and

� Made a declaration that the Committee did allthat was necessary to render its web siteaccessible to Mr Maguire by 15th September2000 by (a) including alternative text on allimages and image map links on its web site; (b)providing access to the Index of Sports from theSchedule page; and (c) providing access to theResults Tables to be used on the web siteduring the Sydney Olympic Games.

The issue of compensation was adjourned toestablish whether it subsequently became appar-ent that Mr Maguire suffered loss and damage.

(a) Claim for compensation by Mr MaguireItwas subsequentlydeterminedby theCommissionerthat the Committee only partially complied with hisdetermination dated 24 August 2000. A furtherhearing was arranged for 6 November 2000 and theCommissioner gave the written reasons for his de-cision on 18 November 2000. Any compensation isdetermined under the provisions of Section 103(1)

(b) (iv) of the Disability Discrimination Act 1992 andis considered under three headings:

� the sum payable in respect of injuries for thecomplainant’s hurt and humiliation on accountof his being discriminated against;

� an amount for legal expenses; and� any aggravated damages.

The Commissioner pointed out that Mr Maguirehas been blind from birth, but despite his disabil-ity, his competence at reading Braille and hisapplication of that skill to computer technologywas obviously of a high order. Mr Maguire holdsa Bachelor of Arts Degree from Macquarie Univer-sity, his major subjects were Linguistics andPhilosophy, he had completed units of a GraduateDiploma in Computer Applications at Riverina-Murray Institute of Higher Learning and was en-gaged at the time of his application in a Master ofPolicy and Applied Social Research Degree atMacquarie University.

As a result, the Commissioner decided thatMr Maguire’s expectations of being able to obtainaccess to information from the Committee’s website were high and that the Committee wasdismissive of Mr Maguire’s concerns from themoment he initiated his complaint. In conse-quence, the response by the Committee was veryhurtful of Mr Maguire and the suggestion by theCommittee that he ask a sighted person to assisthim navigate the Olympic web site has inconsistentwith his expectations and achievements, despitehis disability. To dismiss Mr Maguire and to con-tinue to be dismissive of him made him feel angryand rejected by a significant statutory agentwithin the community. The Commissioner wassatisfied that Mr Maguire’s limited access to theOlympic web site caused him considerable feelingof hurt, humiliation and rejection. Furthermore,the Committee made public statements after 24August 2000 justifying its failure to comply withthe decision of the Commissioner by citing mate-rial that had been specifically rejected by theCommissioner in the earlier hearing. As a result ofthis public statement, Mr Maguire suffered a finalindignity. The Commissioner awarded a sum ofA$20,000 to be paid to Mr Maguire.

2. United States of America

In August 2004, the Attorney General of New York,Eliot Spitzer, reached an out-of-court settlementwith two travel web sites, www.Ramada.com andwww.Priceline.com. Both organizations agreed to

Web site design and disability regulation 309

make their sites more accessible to blind andpartially sighted people. The companies agreedto implement a range of changes to their websites. Each company agreed to pay the State ofNew York US$40,000 and US$37,500, respectively,towards the cost of the investigation.

Changes include the requirement that graphicsand images have clearly understood labels, tablesto have appropriately placed row and columnheaders, and edit fields (boxes where the visitorfills in information) which must be labeled toindicate what type of information is requested.The new design will allow screen reader softwareand similar types of technology to function effec-tively with interactive web sites.

H. The response

It is clear that the Act imposes a duty on owners ofweb sites to ensure that all visitors can use theweb site equally. This is a light duty, (a discussionof the guidelines discussed by the expert witnessesin Mr Maguire’s case can be found in a paper byMartin Sloan, ‘‘Web Accessibility and the DDA’’,The Journal of Information, Law and Technology(JILT), 25, www.elj.warwick.ac.uk/jilt/01-2/sloan.html) because the technical issues are easyto implement at the planning stage. The RNIB in itsReport provides hints on designing web sites inAppendix 2.

There is no reason why all companies witha web site cannot take into account the needs ofdisabled users when they design second and thirdgeneration web sites. It was mentioned abovethat the new code suggested that the serviceproviders should consider this to be an evolvingduty. So, by taking into account the freeadvice of the RNIB and guidelines of the WebAccessibility Initiative, no organization can offerthe excuse any longer that they are justified infailing to provide access for disabled visitors totheir web site.

The point is, that disabled visitors may well becustomers or potential customers, which indicatesthe business sense of ensuring disabled people arenot discriminated against when designing a website. What message is an organization giving to

disabled people by failing to ensure their web sitecannot be seen adequately or at all by a substantialnumber of people? The business reasons for ad-hering to the provisions of the Act should besufficient in themselves. In addition, the publicsector will have added impetus in relation to thedesign and maintenance of websites in the forth-coming Disability Discrimination Bill, which con-tains a duty to promote disability equality. This islikely to address such issues as inaccessible intra-nets for disabled staff, as well as websites aimedat the public. The draft Code of Practice which theDisability Rights Commission has issued in relationto the duty has the following example:

‘‘For example, the head of information in agovernment department is overseeing the redesignof the department’s website, which is beingcontracted out to a web designer. The head ofinformation ensures that the tender documentsinclude reference to the Disability Equality dutyand in particular the need to ensure that thewebsite is fully accessible to disabled people. Thestandard terms of contract are revised to reflectthe fact that any updating and/or maintenancework on the website must ensure access fordisabled people, in order to ensure that the de-partment is meeting its disability equality duty.’’

Lawyers can take immediate action by alteringprecedents relating to contracts with web design-ers. If the Internet is as good and all-empoweringas many claim it is, then minor technical issuesrelating to the design of a web site should not beused to prevent everybody in taking advantage ofthe empowerment of the World Wide Web.

Acknowledgement

Additional material provided by Julie Howell,Digital Policy Development Manager, Royal NationalInstitute of the Blind.

Stephen Mason, Report Correspondent, Barrister St Paul’sChambers, London.

Catherine Casserley, Senior Legislation Adviser, DisabilityRights Commission.