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RE: Legal requirements RE: statistics

From: Harry Woodrow <harrry@email.com>
Date: Wed, 16 Jan 2002 22:12:42 +0800
To: "RUST Randal" <RRust@COVANSYS.com>, "'Martin Sloan'" <martin.sloan@orange.net>, "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>, "'Denise Wood'" <Denise_Wood@operamail.com>, <w3c-wai-ig@w3.org>
Cc: <charles@w3.org>
Message-ID: <LDEMKFBKJGCANBEJGEOIKEGJCCAA.harrry@email.com>
Most of this I would find unarguable.  The only point I would make was that
the user may be using a  screen reader which is not free.

However ther probably should come a point where the problem of old equipment
and software costs ceases to be the responsibility of the designer.

This does not mean that it should be ignored.  There should be some
mechanism provided somehow to enable the user to gain equitable access.

15 years ago I lived in Turkey for a few years, unlike in Australia they
have a sign translator on all the evening news broadcasts, scrolling real
time captions for the TV news that does not require the purchase of a
teletext reciever.

In Australia some closed captioning is sometimes provided because it was
considered that the station has the responsibility of providing them but as
far as I know the TV station is not required to provide everyone who wants
one with a teletext capable TV set.

I think the same situation really applies with the web when it comes to
ancient or specific user choices after all the user cant claim
discrimination if his choices are the cause of it.

Harry Woodrow

-----Original Message-----
From: w3c-wai-ig-request@w3.org [mailto:w3c-wai-ig-request@w3.org]On
Behalf Of RUST Randal
Sent: Wednesday, 16 January 2002 9:41 PM
To: 'Martin Sloan'; 'Kynn Bartlett'; 'Harry Woodrow'; 'Denise Wood';
'w3c-wai-ig@w3.org'
Cc: 'charles@w3.org'
Subject: RE: Legal requirements RE: statistics


Martin,

You make a very good point about Section 508 "likely to provide
interpretation for the ADA."

In the U.S. Section 508 is a mandate for Federal agencies.  However, the
ADA, which has requirements concerning "effective communication" applies to
all covered entities.  This is according to the U.S. Department of Justice.
The way I view it is that if a company has buildings that must be wheelchair
accessible, then their subsequent web site should be accessible to those
with disabilities.

Now, let's pretend for a moment that I am a lawyer, and that I have a client
who is being sued by a user who says that my client's web site is
inaccessible to them.

For now, we will not specify a disability.  And my client is not a Federal
agency.

My client has followed all of the recommended standards of WCAG Level AAA,
along with other W3C recommendations and Section 508, so I know that the
problem in not my client's site.

Upon further investigation, I find out that the plaintff has been accessing
the internet with IE 4 or lower, or Netscape 4.7 or lower, then I would
expect the court would clear my client of any wrongdoing.

However, let's continue and theorize that the plaintiff's lawyer provides
the argument that their client cannot afford the money for new equipment, or
is unable to upgrade their browser.  He or she argues that, on those
grounds, my client should be providing content that is accessible in older
browsers.

How would I counter this?  I would say that, under the provisions of Section
508 and the ADA, it would provide an "undue burden" on my client to create a
second version of their web site that is built on workarounds, and therfore
is non-compliant with the rules.  I would also say that the plaintiff
chooses to continue to access the internet with hardware and software that
does not comply with standards, and that my client cannot be made
responsible for the internet experience of this one person.  I would also
say that, in the U.S., you can get current copies of IE or Netscape almost
anywhere.  You don't have to download them.  And I know for a fact that many
of the computer-industry magazines (Internet Works, Computer Arts, Create
Online), which are sold in Europe come with CDs that have current versions
of the browsers on them.

Randal Rust
Senior Consultant
Covansys, Inc.
Columbus, OH

-----Original Message-----
From: Martin Sloan [mailto:martin.sloan@orange.net]
Sent: Tuesday, January 15, 2002 8:25 PM
To: 'Kynn Bartlett'; 'Harry Woodrow'; 'Denise Wood'; 'w3c-wai-ig@w3.org'
Cc: 'charles@w3.org'
Subject: RE: Legal requirements RE: statistics


Again, apologies for not replying off-list, but Kynn does ask some valid
questions which I feel should be answered.

On Tuesday, January 15, 2002 1:50 AM, Kynn Bartlett
[SMTP:kynn-edapta@idyllmtn.com] wrote:
> Standard industry practice in web design is to create inaccessible
> web sites.  Claiming that ignoring WCAG is unprofessional web
> development is simply wrong, unless you mysteriously want to
> characterize 95% of web development as "not standard industry
> practice" and 5% (or less) of accessible designs as the only
> valid web work being done.
I don't know about other jurisdictions, but there is clear authority in
Scots law that when considering negligence that the required standard can
be held to be higher than those generally accepted by within the
profession.

Therefore, given that Web accessibility will be included in the next code
of practice in the UK as being an example of discrimination and the WCAG
are designed to help designers encorporate accessibility, I have no doubt
that a scottish court would have no problem in adopting a higher standard
than that practiced by the majority of the industry.Just because lots of
people do something one way, doesn't mean it is right. The majority of
motorists probably break the speed limit on a regular basis, but that
doesn't mean that the speed limits do not apply anymore.

> Well, for starters, W3C recommendations aren't "recognized
> standards" -- they're recommendations and are specifically NOT
> international standards.  They are not created in the same way that
> standards are created, and they are not issued by a standards body.
> (The W3C is not an international standards-creating body.)...
> As to what degree this is "recognized", it's also very unclear that
> WCAG has been formally recognized at all in any meaningful sense.
Whilst, yes the guidelines are just that, rather than standards, at the
moment. But I beg to differ. The WCAG have been used for the basis of the
European Commission's eEurope intiative, which applies to all member
states' public websites. Therefore they have been recognised at the highest
legislative level in Europe as a standard for compliance. Likewise, they
have been recognised and adopted in Australia.

I am also led to believe that the section 508 requirements are broadly
based on WCAG level A, which in turn would be likely to provide
interpretation for the ADA. Therefore, whilst they are not a "worldwide"
standard at the moment, an increasing number of bodies and countries *are*
adopting them. As such, any competent professional should surely be aware
of them and their potential implications.

> >The world has moved on. SOCOG literally was
> >groundbreaking and IS a world precedent.
> Precedents don't create international standards. I'm not a lawyer,
> but that much is certainly clear.
This was meant in the non-legal sense. Rather that SOCOG was a watershed
for the interpretation of accessibilty by a court and the way it went about
it.

> >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.
> Likely to be held as quasi-law?  Say what?  Obviously I am not
> a lawyer -- as stated before -- but I would appreciate it if
> you would define what exactly you mean by "quasi-law".
Apologies for the legal terminology. I use the term 'quasi-law' to
encompass law which does not have a statutory basis and is instead a test
(whether it be guidelines issued by a non-governmental/law-making body or a
test thought up by the court itself) that the court has imported to help it
develop the law and provide some clarity. The WCAG were not passed as law
by the Australian parliament, nor established in past case law. However,
they have now effectively been imported into Australian law as a benchmark
with which to measure accessibility.

> Would you likewise state that browser makers who do not enforce
> the HTML 4.01 standard are likely to be found violation of quasi-
> law?
As far as I am aware, there is no law which requires that browser makers
encorporate the latest HTML standards into their browsers.

Whilst the WCAG may not be the perfect solution as regards a legal test, it
is the best on offer and they are increasingly being adopted, and will
continue to be, as the way that accessibility is tested against national
laws. There is a very strong and coherent argument for saying that an
inaccessible web site breaches disability rights legislation and the WCAG
offers the best possible handle for measuring the vague term of
'accessibility'. As I say, they have now been adopted by the European
Commission and Australia in one degree or another and I suspect that this
will be followed by many more countries.

I hope that explains it.

martin.
--
martin.sloan@orange.net
Glasgow Graduate School of Law
A Joint venture between the universities of Glasgow and Strathclyde
Received on Wednesday, 16 January 2002 09:12:49 GMT

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