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RE: Legal requirements RE: statistics

From: RUST Randal <RRust@COVANSYS.com>
Date: Wed, 16 Jan 2002 08:40:33 -0500
Message-ID: <37925254B67DD311876C009027B0FF9201D3A619@cbscolex01.cbsinc.com>
To: "'Martin Sloan'" <martin.sloan@orange.net>, "'Kynn Bartlett'" <kynn-edapta@idyllmtn.com>, "'Harry Woodrow'" <harrry@email.com>, "'Denise Wood'" <Denise_Wood@operamail.com>, "'w3c-wai-ig@w3.org'" <w3c-wai-ig@w3.org>
Cc: "'charles@w3.org'" <charles@w3.org>

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

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

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 

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 

> >In my article I did not state that
> >the WCAG guidelines are law, but rather that they are *likely* to be 
> >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.

Glasgow Graduate School of Law
A Joint venture between the universities of Glasgow and Strathclyde
Received on Wednesday, 16 January 2002 08:39:00 UTC

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