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RE: Legal requirements RE: statistics

From: Charles McCathieNevile <charles@w3.org>
Date: Mon, 14 Jan 2002 07:32:32 -0500 (EST)
To: Kynn Bartlett <kynn-edapta@idyllmtn.com>
cc: Harry Woodrow <harrry@email.com>, Denise Wood <Denise_Wood@operamail.com>, <w3c-wai-ig@w3.org>
Message-ID: <Pine.LNX.4.30.0201140719100.29073-100000@tux.w3.org>
On Sun, 13 Jan 2002, Kynn Bartlett wrote:

  It's dangerous for non-lawyers (I'm not one, I can't speak for you)
  to speak in generalities about legal matters in an international
  forum, but I really think that if you've got a decent contract, the
  contractor would be reasonably insulated from lawsuits arising
  from following out the explicit contractual requests of the client.

  I'd say that unless negligence was shown, the contractor should not
  be held responsible for a client decision to not be concerned with
  accessibility.

This is roughly what the Australian Human Rights and Equal Opportunities
Commission said with regard to the Sydney Olympics Case. SOCOG claimed that
IBM should be held responsible, because they built the site, and the
Commission said that IBM wasn't providing the service, they were providing a
part of it, and SOCOG was resposnsible for ensuring accessibility.

But see my further comments below.

(Note that your mileage is very likely to differ in a different state or
country, and that foreign court decisions are useful for illustrating
principles but don't take account of local peculiarities in the law)

  Quoting from
  >http://elj.warwick.ac.uk/jilt/01-2/sloan.html
  >in section 5.2
  >It is submitted that there is a definite correlation between the services of
  >a builder and that of a Web site designer - especially in the light of the
  >potential legal requirements of the DDA.  Therefore it is argued there is an
  >implied contractual duty upon Web designers to carry out their work in a
  >competent manner using 'the skill and care of a competent workman.' Further,
  >the obligation to follow recognised standards and practices' would surely
  >include a requirement to design the Web site with WAI Guidelines
  >compliance.....

  It's pure fantasy (although an appealing one, but false nevertheless)
  to consider that in any way the WCAG document represents a 'recognized
  standard' for professional web design and any deviation is some sort
  of violation of professional ethics or gross negligence.  While it
  might be appealing for some activists or lawyers to claim this, it's
  just not supportable to put WCAG on the same level as standards for
  physical buildings.  In fact, it's a downright preposterous claim.

Well, it depends. In Australia all levels of government, and the
recommendations of the Human Rights and Equal Opportunities Commission state
officially that the WCAG forms the best available specification of accessible
design.

In Australia, government sites are "required" to conform to WCAG at least to
level A, as the standard for accessibility. There is still, of course, a
question of what a competent professional is expected to know, but given the
SOCOG case, and the government requirement, and the fact that the Disability
discrimination act has been in place for ages, one could reasonably expect a
commissioning agent to be aware of the requirement for accessibility, and to
make it clear that this was required of their contractor. A contractor who
didn't know how and wasn't prepared to learn (for example by copying what the
government requires) would seem to be like a "backyard mechanic" who might be
good at something, but might have gaps in their professional knowldedge that
amount to negligence.

One of the SOCOG claims in defence was that the WCAG was not ready when they
were designing their requirements. That was rejected as a reason for not
making something accessible due to the way the law works in Australia - it
doesn't rely on a standard being available, although if there is a standard
or quasi-standard ignoring it tends to be dangerous.

I believe that if a site was designed now without reference to WCAG in
Australia, and a case was brought against it, that design would be construed
as negligent by the Commmission. But I am not a lawyer nor a judge, so I will
wait to see the case and what the legal folks say.

chaals

-- 
Charles McCathieNevile    http://www.w3.org/People/Charles  phone: +61 409 134 136
W3C Web Accessibility Initiative     http://www.w3.org/WAI    fax: +1 617 258 5999
Location: 21 Mitchell street FOOTSCRAY Vic 3011, Australia
(or W3C INRIA, Route des Lucioles, BP 93, 06902 Sophia Antipolis Cedex, France)
Received on Monday, 14 January 2002 07:32:49 GMT

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