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Re: Legal requirements RE: statistics

From: Access Systems <accessys@smart.net>
Date: Fri, 18 Jan 2002 09:22:49 -0500 (EST)
To: David Poehlman <poehlman1@home.com>
cc: RUST Randal <RRust@COVANSYS.com>, 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
Message-ID: <Pine.LNX.4.21.0201180920220.5593-100000@smarty.smart.net>
On Fri, 18 Jan 2002, David Poehlman wrote:

> we are already seeing propriatary solutions.  One of the biggest
> problems we face as users is the factors that limit our choice of access

Right, I don't care if it is propriatary but it should be interusable with
other systems.

> 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.

and I hate IE and prefer Lynx, but will occasionally use NS or Mozilla

> I hope the at vendors are working to widen our choices.  I am watching
> mozilla development.

I suspect that most vendors (other than the GPL folks) are working to
limit our choices trying to force us to pick a winner!

Bob

> 
> ----- 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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>    ASCII Ribbon Campaign                        accessBob
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> 
> 
> 

   ASCII Ribbon Campaign                        accessBob                       
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Received on Friday, 18 January 2002 09:21:27 GMT

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