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RE: Legal requirements RE: statistics

From: Martin Sloan <martin.sloan@orange.net>
Date: Tue, 15 Jan 2002 00:55:12 -0000
Message-ID: <01C19D5F.A0665700.martin.sloan@orange.net>
To: "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>, Harry Woodrow <harrry@email.com>, Denise Wood <Denise_Wood@operamail.com>, "w3c-wai-ig@w3.org" <w3c-wai-ig@w3.org>
Cc: "charles@w3.org" <charles@w3.org>
Having been quoted from my paper 'Web Accessibility and the DDA' over the 
past few days on the mailing list I feel I should clarify a few matters and 
perhaps reinforce my argument.

Firstly, the code of practice that accompanies the UK Disability 
Discrimination Act is being redrafted and the first draft has been laid 
before parliament. This, for the first time in the UK at least, will state 
that Web sites should be accessible and that an inaccessible web site may 
breach the Act. I use the words 'should' and 'may' because this is not 
primary legislation and is merely a document that accompanies the Act to 
'flesh it out' and elaborate on how compliance can be achieved. However, 
although it is not legally binding but rather persuasive in the courts, I 
think we can safely say that the courts will when asked to deal with a 
matter regarding accessibility, follow it. this code of practice is likely 
to come into effect later this year.

Secondly, the article is written from a Scots law/UK point of view and was 
published by a UK law journal. However, I believe that much of the case law 
is on the peripheral of the argument and that the general principles will 
transend national boundaries.

I would also say that to a certain extent I have been quoted out of 
context. The quote itself does not say that the third party itself will be 
liable for breaching the DDA/ADA etc. The quote instead comes from a 
section on breach of contract and negligence. Therefore, the argument is 
that although the commissioning body will by and large be liable under the 
relevant legislation for providing an inaccessible web site, they 
themselves may have a subsequent remedy against the party that provided the 
web site.

This seems perfectly reasonable. If I, as the manufacturer of widgets, want 
to set up an e-commerce facility and commission Websitesrus to do this, I 
expect them to provide me with a web site that will do the job and comply 
with any relevant legislation to the standard expected from a reasonable 
professional. And why not? If my company wanted to build a new shop, I 
would equally expect it to comply with the relevant building regulations 
and be built to a reasonable standard that I could expect from a competent 
builder. Therefore, it reasonable to expect *both* to comply with the 
relevant disability legislation. Whilst one is perhaps far more obvious to 
the layman than the other, I fail to see where the difference is between 
these examples. That's why we have professionals. They are supposed to know 
what they are doing.

As long as the contract for the design of the website does not specifically 
(or even infer) that the site must not or should not be accessible, why 
shouldn't the commissioning party be able to reclaim their losses as a 
result of the other party's failure to design an accessible site? The legal 
arguments for accessible web design are increasingly well documented, and 
if a designer chooses to ignore these or is unaware of them then as Simon 
says, he is not being a 'professional' and is therefore negligent. If I as 
a lawyer fail to advise a client correctly because I was unaware of a 
particular Act of Parliament that had been published two years ago, I would 
be negligent. So where's the difference?

With regard to my 'preposterous' claims as to wether the WCAG guidelines 
are a 'recognized standard' (Kynn's words, not mine), I don't understand 
where Kynn is coming from. As Charles pointed out, the W3C guidelines have 
been recognised and accepted by the Australian courts. Whilst I appreciate 
that Kynn is American, this is, I understood, an international discussion 
forum and, with respect, the Australian courts *do* have jurisdiction in 
Australia. Besides, the argument in SOCOG is equally pertinent in the 
States.

To look at this from a layman's (or even a legalman's) point of view: there 
is generally an argument under many national laws that an inaccessible web 
site breaches disability discrimination legislation. The concept of 
accessibility is something that a court of law is likely to find very 
difficult to understand and quantitfy.However, the WCAG guidelines are a 
(reasonably) clear set of standards laid down by the body which (from my 
non-tech point of view) set the standards for HTML. These set out how web 
pages should be designed with regard to accessibility. Given that the 
Australian courts have accepted these guidelines as quasi-law and that that 
case was reported in the IT press around the world and is likely to be led 
as persuasive authority in subsequent cases elsewhere in the world, I fail 
to see why national courts would be likely to consider such an argument 
'preposterous'. They will no doubt take the opinion that the web designer 
should have been aware of the guidelines *and* the case and in not 
following them were being negligent.

Kynn seems to have his head in the sand over this. Surely it is in 
everyone's best interests that there is some sort of recognised standard 
regarding accessible design. The world has moved on. SOCOG literally was 
groundbreaking and IS a world precedent. In my article I did not state that 
the WCAG guidelines are law, but rather that they are *likely* to be held 
to be quasi-law and that it is surely wise to follow them.

What is preposterous about that?

martin.
--
martin.sloan@orange.net
Glasgow Graduate School of Law
A joint venture between the universities of Glasgow and Strathclyde
Received on Monday, 14 January 2002 20:01:51 GMT

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