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RE: Legal requirements RE: statistics

From: RUST Randal <RRust@COVANSYS.com>
Date: Wed, 16 Jan 2002 09:27:12 -0500
Message-ID: <37925254B67DD311876C009027B0FF9201D3A621@cbscolex01.cbsinc.com>
To: "'David Poehlman'" <poehlman1@home.com>, RUST Randal <RRust@COVANSYS.com>, "'Martin Sloan'" <martin.sloan@orange.net>, "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>, "'Harry Woodrow'" <harrry@email.com>, "'Denise Wood'" <Denise_Wood@operamail.com>, w3c-wai-ig@w3.org
Cc: charles@w3.org
you can buy a ladder and then things will be accessible to you.  or you can
stand on a chair.  or you can build your own house that accommodates you.

you said "The point here is that we are not asking nor should we be asking
for breakage." but non-compliant software and browsers inherently cause
breakage with the standards.  in essence, what i think you are really saying
is that the standards should follow the OLD ways, and not improve, never
move forward.  how long then are we to use Netscape 4.7, or Netscape 3.0 for
that matter?

-----Original Message-----
From: David Poehlman [mailto:poehlman1@home.com]
Sent: Wednesday, January 16, 2002 9:19 AM
To: RUST Randal; 'Martin Sloan'; 'Kynn Bartlett'; 'Harry Woodrow';
'Denise Wood'; w3c-wai-ig@w3.org
Cc: charles@w3.org
Subject: Re: Legal requirements RE: statistics


Let's take another analogy:
I am 3 feet 9 inches tall and will never get any taller.  The houses I
look at and can afford are built to speck but I cannot live in them
because the storage is too high, the sinks are too tall etc.

The point here is that we are not asking nor should we be asking for
breakage.  Any one can sue for anything and they might just win on some
technical ground or other.  Your client needs to find a way to
accomodate as wide an audience as possible and if that process is partly
complaint driven, it must be part of the remedy before legal action.  If
legal action is attempted before remedy is sought through this chanel,
most courts I know of will not even touch the case or should not.

----- Original Message -----
From: "RUST Randal" <RRust@COVANSYS.com>
To: "'David Poehlman'" <poehlman1@home.com>; "RUST Randal"
<RRust@COVANSYS.com>; "'Martin Sloan'" <martin.sloan@orange.net>; "'Kynn
Bartlett'" <kynn-edapta@idyllmtn.com>; "'Harry Woodrow'"
<harrry@email.com>; "'Denise Wood'" <Denise_Wood@operamail.com>;
<w3c-wai-ig@w3.org>
Cc: <charles@w3.org>
Sent: Wednesday, January 16, 2002 9:07 AM
Subject: RE: Legal requirements RE: statistics


if my client would have to spend twice as much money on development time
and
hardware to produce a non-standards compliant web site, i would think
that
would easily be undue burden.

why would taking windows out of the equation matter?  my client's web
site
is platform independent, because it has been built to standards.  i
would
submit that browsers that do not conform to some level of DOM 1 are
non-compliant.

the point is, standards matter.  they do in every aspect of our life.

let's make an analogy here:

the highway, which is paved with concret, is the internet.  my honda
accord,
with rubber tires, is a standards-compliant browser.  i can get along
nicely
with my standards-compliant browser on the internet.  my neighbor, who
lives
in a log cabin and does not have electricity, travels with a horse-drawn
cart with wooden wheels.  while he is able to get along, it takes him
much
more time to get places. he is constantly complaining that the state
needs
to provide an alternate path, so that he can avoid the automobile
traffic.
funny thing is, my neighbor has a perfectly fine car sitting in his
drive,
which his cousin gave him.  do you think that the court is going to
order a
new roadway to be built for him?

both modes of transportation conform to certain standards.  they have
wheels, seats, a method of propulsion.  but mine is compliant with
today's
standards.  my neighbor's is not.


-----Original Message-----
From: David Poehlman [mailto:poehlman1@home.com]
Sent: Wednesday, January 16, 2002 8:50 AM
To: RUST Randal; 'Martin Sloan'; 'Kynn Bartlett'; 'Harry Woodrow';
'Denise Wood'; w3c-wai-ig@w3.org
Cc: charles@w3.org
Subject: Re: Legal requirements RE: statistics


I would submit two posits.
1> undue burden is not as easy as it sounds to make a case for.  Also on
this point, I'd be somewhat surprised if comforming to a high level of
wcag and using the techniques that make the widest fit for your audience
would cause problems for the browsers you describe for the plaintif.
2> take windows out of the equasion and make sure that there is no room
for jockying with the plaintiff and what should the out come be?
Remembering that the web is world wide and that makes this an even
stickier issue.

----- Original Message -----
From: "RUST Randal" <RRust@COVANSYS.com>
To: "'Martin Sloan'" <martin.sloan@orange.net>; "'Kynn Bartlett'"
<kynn-edapta@idyllmtn.com>; "'Harry Woodrow'" <harrry@email.com>;
"'Denise Wood'" <Denise_Wood@operamail.com>; <w3c-wai-ig@w3.org>
Cc: <charles@w3.org>
Sent: Wednesday, January 16, 2002 8:40 AM
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 09:25:39 GMT

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