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RE: legal responsibility

From: Scarlett Julian (ED) <Julian.Scarlett@sheffield.gov.uk>
Date: Mon, 22 Apr 2002 08:48:47 +0100
Message-ID: <F9BE3B1AB649D311A573009027852E4D01E348DD@EDUC_MXS>
To: "'w3c-wai-ig@w3.org'" <w3c-wai-ig@w3.org>
Many thanks for everyone who replied to my original post. You have, in
effect, affirmed my fears. The software was purchased by a department with
no consultation with myself or other colleagues with interest/knowledge in
this area and as a result we have a sub-standard application to try and put
right. Time to talk to the suppliers for source code ;-)

thanks again folks

Julian



> -----Original Message-----
> From: Martin Sloan [mailto:martin.sloan@orange.net]
> Sent: Tuesday, April 16, 2002 5:18 PM
> To: Scarlett Julian (ED)
> Cc: 'w3c-wai-ig@w3.org'
> Subject: Re: legal responsibility
> 
> 
> 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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> 
The information in this email is confidential. The contents may not be disclosed or used by anyone other than the addressee.  If you are not the addressee, please tell us by using the reply facility in your email software as soon as possible. Sheffield City Council cannot accept any responsibility for the accuracy or completeness of this message as it has been transmitted over a public network.  If you suspect that the message may have been intercepted or amended please tell us as soon as possible.
Received on Monday, 22 April 2002 03:47:06 GMT

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