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Re: legal responsibility

From: Martin Sloan <martin.sloan@orange.net>
Date: Tue, 16 Apr 2002 16:18:00 GMT
To: "Scarlett Julian (ED)" <Julian.Scarlett@sheffield.gov.uk>
Cc: "'w3c-wai-ig@w3.org'" <w3c-wai-ig@w3.org>
Message-ID: <1668815db6.15db616688@orange.net>
Hi Julian,

The short answer to your question is probably yes - you are still 
responsible. Under the DDA, your organisation is the one providing the 
service (the Website), so therefore you are the one who has the duties 
under the Act. The fact that you have bought technology which is 
inaccessible and you cannot make it accessible is unlikely to make any 
difference.

I would have thought that the only way you could attempt to justify 
providing an inaccesible service would be to show that you had made 
reasonable enquiries into the accessibility of the product before 
purchasing it and either were mislead or convinced that there were no 
accessible alternatives.

Further, you would have to show that there was a reason for you not 
providing an accessible version of this part of the site or that it 
would be horrendously expensive to do so retrospectively (but I'm 
guessing the software wasn't that cheap in the first place, so that's 
probably a non-starter).

Either way, it would still be the service provider that would have to 
defend an action and then show that it was justified under the Act.

If you were to be unfortunate enough to lose an action under the DDA 
you may have subsequent recourse to receover your losses against the 
third party software provider on the grounds that their product was not 
of a satisfactory standard etc. This is in much the same way as with a 
Web site developer being sued in delict (tort) or contract for 
providing a service provider with an inaccessible website. As this has 
been discussed several times on this mailing list I won't go into this, 
(but see my reply to a qeustion on this at 
http://www.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=008Twu).

The main problem here is the third party themselves as a provider of 
off the shelf products have no requirement to make them accessible 
under the Act (as in many countries). 

An analogy here is that there is no requirement on Nokia and Motorola 
to make accessible mobile phones, but as service providers, the likes 
of Vodafone and Orange probably have a duty to provide an accessible 
mobile phone service. This would mean providing an accessible phone to 
a visually impaired person, if they are available and it is reasonable 
to do so - even a specialist Xpress-on cover for a Nokia would probably 
be deemed a reasonable adjustment (cf. Telstra in Australia and the 
court ordering them to provide TTY telephones).

Of course, all of this ultimately goes back to the contract between the 
service provider and the third party - if the product is off-the-shelf 
there it is likely to be a standard license and therefore unlikely to 
contain any warranties regarding the accessibility of the product, and 
the third party would deny any responsibility, claiming that they are 
not in breach of contract.

The moral is, I guess, to ensure that service providers contracts with 
third parties are sufficiently watertight as to allow subsequent 
recovery of losses arising under the product's inaccessibility. 

But ultimately you as the service provider provide the Website and 
cannot pass on your duties to third parties, merely because you have 
bought an inaccessible product.

(usual disclaimer: none of this has been tested in court.. don't rely 
on it without consulting a solicitor etc etc)

martin.
--
Martin Sloan
Glasgow Graduate School of Law
E: martin.sloan@orange.net
T: 0141 586 8917
M: 07974 655170


----- Original Message -----
from: "Scarlett Julian (ED)" <Julian.Scarlett@sheffield.gov.uk>
date: Tuesday, April 16, 2002 1:14 pm
subject: legal responsibility

> Hi all
> 
> does anyone know what the position is re third party web 
> applications used
> within a website that fall foul of the accessibility requirements 
> of the DDA
> (UK Disability Discrimination Act).
> 
> Scenario:
> we have bought an asp application with style and javascript nav 
> menu hard
> wired into a vb dll which makes it impossible for us to modify 
> anything to
> fit into our corporate standards. Are we legally responsible for 
> the use of
> that application or can we pass the buck to the application 
> developers? Is
> our only course of action to pay for the vb source to make the 
> necessarymodifications ourselves.
> 
> 
> I feel that this is probably an important topic for local 
> government where
> buying apps off-the-shelf is seen as a quick option to satisfying 
> othertargets set by central government.
> 
> Julian Scarlett
> Web Design & Document Management System Officer
> PPU
> Education Directorate 
> Sheffield City Council
> 0114 2735721
> mob 07904914976
> julian.scarlett@sheffield.gov.uk 
> 
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Received on Tuesday, 16 April 2002 12:18:37 GMT

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