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Re: Legal requirements RE: statistics

From: Access Systems <accessys@smart.net>
Date: Wed, 16 Jan 2002 09:48:54 -0500 (EST)
To: David Poehlman <poehlman1@home.com>
cc: 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, charles@w3.org
Message-ID: <Pine.LNX.4.21.0201160943080.20926-100000@smarty.smart.net>
On Wed, 16 Jan 2002, David Poehlman wrote:

> 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.

however a "Universal Design house" should work for you with little
modification if at all.   

> The point here is that we are not asking nor should we be asking for
> breakage.

and neither you nor I nor any other person is "Broken" just outside the
standard diviation

>  Any one can sue for anything and they might just win on some
> technical ground or other. 

the question is "is this a technical ground or is it a valid case of
expclusion"   I know many people who think making buses and subways
accessible is a total waste of money for a few troublemakers who sue at
the drop of a hat, why don't they just stay home.

> 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.

but when is "Through" channels be considered exhausted.  people fought
within the system for accessible transit for over 20 years and got
basically nothing, lawsuits and legal action have had an effect, yes there
is still complaining but it is happening.

  expect the same thing here.

the NFB v AOL is just the tip of the iceberg

Bob

> 
> ----- 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
> 
> 
> 

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Received on Wednesday, 16 January 2002 09:46:29 GMT

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