- From: Charles McCathieNevile <charles@w3.org>
- Date: Tue, 15 Jan 2002 08:38:57 -0500 (EST)
- To: Kynn Bartlett <kynn-edapta@idyllmtn.com>
- cc: David Woolley <david@djwhome.demon.co.uk>, <w3c-wai-ig@w3.org>
OK, here we are getting off topic of accessibility and into the murky area where lawyers work and understandings are based on principles older than the USA (which inherited most of its law from other places). In very braod terms, ther are a few ways laws are "made". There are governments who write a law - often called "statute law", which may consist of a general law (The Workplace Rehabilitation Act in the USA, for example) and some regulations, or "finer details" - the parts of 1194.22 that we often called "section 508", or it may be a very general document (The Australian Disability Discrimination Act) which explains whose job it is to interpret the law in specific cases. There are courts, and things that act like courts. I'll call those things "quasi-judicial bodies" and lump them all together. Courts are often asked to decide on a question that hasn't been explicitly covered by a law. For example, although Section 508 makes requirements of Federal government purchases in the US, the Americans with Disabilities Act says (in very very rough terms) "certain organisations can't discriminate against people with a disability", but isn't clear about whether or not providing access to a Web Site is one of the services covered by the Act. What happens in the real world is something like the following: An organisation (lets call them NFB) goes to court, and says that the service provided by another organisation (lets call them AOL), consisting in part of a means to access websites, is in breach of the Americans with Disabilities Act (which we'll call ADA). There isn't a specific section in the ADA about this question, so the court tries to work out what are the applicable precedents - what have other relevant courts done in the circumstances. First they will look for decisions of the same court about the same law. So whatever happens in this case, if it results in a decision of the court, next time someone asks the question "does the ADA apply to provision of access to websites?", the most relevant precedent will be the decision given here. Then they look at other courts. It is very common practise to look internationally at the way similar legislation has been interpreted in other countries, and work out how to apply the principles. So the decision in Maguire vs SOCOG (as one of the first to ask the question "does the DDA apply to the web" - it wasn't specified in the Australian legislation either) is a relevant precedent for a US court, and I would bet that a case brought under the ADA would mention that decision as relevant. So although the legal systems are different, they can and do look at what happens in other countries. The thing that saves you from what you say about China is the US Constitutional right to freedom of speech (we don't have that in Australia, although it has been inferred to a limited extent by courts, based on the way that other countries have approached the problem in their courts). This would be held to be more relevant that Chinese law about what is damaging publication - although principles based on those decisions might be recognised as precedent in a defamation action in the US (or might be regarded as wrong decisions, or inapplicable). There is a reason to take note of the ADA, and how it is related to similar legislation internationally. (The US isn't big on agreeing to International treaties, but in places like Europe and Australia there are international treaty obligations that govern Human Rights, and which are also relevant to the ways things can be decided in a court). This whole area of case law is why lawyers make money. Most people don't know what the case history is, and they pay a lawyer for their understanding of it. If your lawyer hadn't heard of Maguie vs SOCOG and was defending you against a discrimination case based on website access, you could probably get a court to agree that the lawyer was negligent - they should have known that. But you probably won't win your case, because the precedent is quite easily to apply, even outside Australia. </end very vague explanation of the law by a non lawyer> chaals On Mon, 14 Jan 2002, Kynn Bartlett wrote: >In addition, very few web developers are probably even aware of the >Sydney court case, and the people responsible for the Salt Lake site are >probably like any other commercial site developer in this respect. And certainly there's little reason for a web developer in, say, Brazil to take note of laws in Australia that don't apply to them, especially a case that was not highly publicized. I mean, you can probably get jailed and shot in China for some of the things on my web site, but I am not likely to give a damn about what they might think. --Kynn -- Charles McCathieNevile http://www.w3.org/People/Charles phone: +61 409 134 136 W3C Web Accessibility Initiative http://www.w3.org/WAI fax: +1 617 258 5999 Location: 21 Mitchell street FOOTSCRAY Vic 3011, Australia (or W3C INRIA, Route des Lucioles, BP 93, 06902 Sophia Antipolis Cedex, France)
Received on Tuesday, 15 January 2002 08:39:31 UTC