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Re: Legal requirements RE: statistics

From: David Poehlman <poehlman1@home.com>
Date: Fri, 18 Jan 2002 07:06:27 -0500
Message-ID: <001701c1a018$8f38d410$c2f20141@cp286066a>
To: "Access Systems" <accessys@smart.net>, "RUST Randal" <RRust@COVANSYS.com>
Cc: "Harry Woodrow" <harrry@email.com>, "'Martin Sloan'" <martin.sloan@orange.net>, "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>, "'Denise Wood'" <Denise_Wood@operamail.com>, <w3c-wai-ig@w3.org>, <charles@w3.org>
we are already seeing propriatary solutions.  One of the biggest
problems we face as users is the factors that limit our choice of access
tools.  There are still for instance some sites that tell you need
netscape but the browser that best deals with my functional limitations
is ie and my favorite screen reader so down that road, I cannot travel.
I hope the at vendors are working to widen our choices.  I am watching
mozilla development.

----- Original Message -----
From: "Access Systems" <accessys@smart.net>
To: "RUST Randal" <RRust@COVANSYS.com>
Cc: "Harry Woodrow" <harrry@email.com>; "'Martin Sloan'"
<martin.sloan@orange.net>; "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>;
"'Denise Wood'" <Denise_Wood@operamail.com>; <w3c-wai-ig@w3.org>;
<charles@w3.org>
Sent: Wednesday, January 16, 2002 9:52 AM
Subject: RE: Legal requirements RE: statistics


On Wed, 16 Jan 2002, RUST Randal wrote:

> but the W3C recommendations are meant to serve as building blocks for
the
> future, so that everything is compatible in the future.

one would certainly hope so.....but will it be.

I could play devils advocate and think of a dozen ways it might not
be.  for example.
eg   Microsoft finds a new way to make things accessible, but they
maintain it as a proprietary system and it will only work on MS newest
systems.  those who code for this system find that other systems won't
work with it, they are mutually exclusive....(of course MS has never
done
anything like that) now what happens to all the users of Mac, Linux,
Dos,
BsD, etc???

Bob

>
> -----Original Message-----
> From: Access Systems [mailto:accessys@smart.net]
> Sent: Wednesday, January 16, 2002 9:42 AM
> To: Harry Woodrow
> Cc: RUST Randal; 'Martin Sloan'; 'Kynn Bartlett'; 'Denise Wood';
> w3c-wai-ig@w3.org; charles@w3.org
> Subject: RE: Legal requirements RE: statistics
>
>
> On Wed, 16 Jan 2002, Harry Woodrow wrote:
>
> > 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.
>
> no old equipment will always be a problem, it is a rolling problem.
what
> is new today will be obsolete in 3-5 years and new coding etc will be
> happining and folks then will be complaining about the obsolete
equipment
> then that is new today.
>
> > This does not mean that it should be ignored.  There should be some
> > mechanism provided somehow to enable the user to gain equitable
access.
>
> of course "Define" access.  sure screen readers will improve (I hope)
but
> what about the people with things like ADD and other focus
disabilities
> that can only really effectively use a text based plain screen system.
>
> that and other reasons will probably mean there will ALWAYS be a need
for
> a plain text fall back system
>
> Bob
>
> >
> > 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
> >
>
>    ASCII Ribbon Campaign                        accessBob
>
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Thanks
>

   ASCII Ribbon Campaign                        accessBob
    NO HTML/PDF/RTF in e-mail                   accessys@smartnospam.net
    NO MSWord docs in e-mail                    Access Systems,
engineers
    NO attachments in e-mail,  *LINUX powered*   access is a civil right
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above. If you are not the intended recipient, Please notify the sender
as
soon as possible. Please DO NOT READ, COPY, USE, or DISCLOSE this
communication to others and DELETE it from your computer systems.
Thanks
Received on Friday, 18 January 2002 07:06:30 GMT

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