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RE: Legal requirements RE: statistics

From: Access Systems <accessys@smart.net>
Date: Wed, 16 Jan 2002 09:42:24 -0500 (EST)
To: Harry Woodrow <harrry@email.com>
cc: RUST Randal <RRust@COVANSYS.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.4.21.0201160938540.20926-100000@smarty.smart.net>
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


> 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

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Received on Wednesday, 16 January 2002 09:39:47 UTC

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