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Re: Legal requirements RE: statistics

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>
Message-ID: <Pine.LNX.4.30.0201150818590.20590-100000@tux.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>


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.


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

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