RE: legal responsibility

Many thanks for everyone who replied to my original post. You have, in
effect, affirmed my fears. The software was purchased by a department with
no consultation with myself or other colleagues with interest/knowledge in
this area and as a result we have a sub-standard application to try and put
right. Time to talk to the suppliers for source code ;-)

thanks again folks

Julian



> -----Original Message-----
> From: Martin Sloan [mailto:martin.sloan@orange.net]
> Sent: Tuesday, April 16, 2002 5:18 PM
> To: Scarlett Julian (ED)
> Cc: 'w3c-wai-ig@w3.org'
> Subject: Re: legal responsibility
> 
> 
> Hi Julian,
> 
> The short answer to your question is probably yes - you are still 
> responsible. Under the DDA, your organisation is the one 
> providing the 
> service (the Website), so therefore you are the one who has 
> the duties 
> under the Act. The fact that you have bought technology which is 
> inaccessible and you cannot make it accessible is unlikely to 
> make any 
> difference.
> 
> I would have thought that the only way you could attempt to justify 
> providing an inaccesible service would be to show that you had made 
> reasonable enquiries into the accessibility of the product before 
> purchasing it and either were mislead or convinced that there were no 
> accessible alternatives.
> 
> Further, you would have to show that there was a reason for you not 
> providing an accessible version of this part of the site or that it 
> would be horrendously expensive to do so retrospectively (but I'm 
> guessing the software wasn't that cheap in the first place, so that's 
> probably a non-starter).
> 
> Either way, it would still be the service provider that would have to 
> defend an action and then show that it was justified under the Act.
> 
> If you were to be unfortunate enough to lose an action under the DDA 
> you may have subsequent recourse to receover your losses against the 
> third party software provider on the grounds that their 
> product was not 
> of a satisfactory standard etc. This is in much the same way 
> as with a 
> Web site developer being sued in delict (tort) or contract for 
> providing a service provider with an inaccessible website. As 
> this has 
> been discussed several times on this mailing list I won't go 
> into this, 
> (but see my reply to a qeustion on this at 
> http://www.greenspun.com/bboard/q-and-a-fetch-msg.tcl?msg_id=008Twu).
> 
> The main problem here is the third party themselves as a provider of 
> off the shelf products have no requirement to make them accessible 
> under the Act (as in many countries). 
> 
> An analogy here is that there is no requirement on Nokia and Motorola 
> to make accessible mobile phones, but as service providers, the likes 
> of Vodafone and Orange probably have a duty to provide an accessible 
> mobile phone service. This would mean providing an accessible 
> phone to 
> a visually impaired person, if they are available and it is 
> reasonable 
> to do so - even a specialist Xpress-on cover for a Nokia 
> would probably 
> be deemed a reasonable adjustment (cf. Telstra in Australia and the 
> court ordering them to provide TTY telephones).
> 
> Of course, all of this ultimately goes back to the contract 
> between the 
> service provider and the third party - if the product is 
> off-the-shelf 
> there it is likely to be a standard license and therefore unlikely to 
> contain any warranties regarding the accessibility of the 
> product, and 
> the third party would deny any responsibility, claiming that they are 
> not in breach of contract.
> 
> The moral is, I guess, to ensure that service providers 
> contracts with 
> third parties are sufficiently watertight as to allow subsequent 
> recovery of losses arising under the product's inaccessibility. 
> 
> But ultimately you as the service provider provide the Website and 
> cannot pass on your duties to third parties, merely because you have 
> bought an inaccessible product.
> 
> (usual disclaimer: none of this has been tested in court.. don't rely 
> on it without consulting a solicitor etc etc)
> 
> martin.
> --
> Martin Sloan
> Glasgow Graduate School of Law
> E: martin.sloan@orange.net
> T: 0141 586 8917
> M: 07974 655170
> 
> 
> ----- Original Message -----
> from: "Scarlett Julian (ED)" <Julian.Scarlett@sheffield.gov.uk>
> date: Tuesday, April 16, 2002 1:14 pm
> subject: legal responsibility
> 
> > Hi all
> > 
> > does anyone know what the position is re third party web 
> > applications used
> > within a website that fall foul of the accessibility requirements 
> > of the DDA
> > (UK Disability Discrimination Act).
> > 
> > Scenario:
> > we have bought an asp application with style and javascript nav 
> > menu hard
> > wired into a vb dll which makes it impossible for us to modify 
> > anything to
> > fit into our corporate standards. Are we legally responsible for 
> > the use of
> > that application or can we pass the buck to the application 
> > developers? Is
> > our only course of action to pay for the vb source to make the 
> > necessarymodifications ourselves.
> > 
> > 
> > I feel that this is probably an important topic for local 
> > government where
> > buying apps off-the-shelf is seen as a quick option to satisfying 
> > othertargets set by central government.
> > 
> > Julian Scarlett
> > Web Design & Document Management System Officer
> > PPU
> > Education Directorate 
> > Sheffield City Council
> > 0114 2735721
> > mob 07904914976
> > julian.scarlett@sheffield.gov.uk 
> > 
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> 
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Received on Monday, 22 April 2002 03:47:06 UTC