Discrimination against people with disabilities is prohibited by law, but website owners often don't realise how the law affects websites.
A 2005 study found that as many as 97% of European public service websites failed to provide a minimum level of accessibility. There are few reasons to think that commercial websites are more accessible than governmental websites. Web designers, developers and operators clearly need to be more conscious of accessibility issues. Even if operators are not deliberately excluding disabled users, they could find themselves on the wrong side of the law. This post gives a brief overview of the Equality Act 2010, its application to websites, the obligations it places on their owners, and the practical steps that may be taken to improve accessibility.
The Equality Act 2010
Since 2 December 1996 (when the Disability Discrimination Act 1995 came into force) website owners have been obliged to ensure that their websites are accessible to users with disabilities. After over a decade in force, the DDA's requirements were merged into the Equality Act 2010. The 2010 Act was intended to bring clarity to the diversity of previously-extant discrimination legislation. Despite the goal of clarity, the new legislation can be more confusingthan the old. Section 29(1) of the 2010 Act says that:
A person ... concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
Accordingly, neglecting to provide a service to a disabled person that is normally provided to other persons is unlawful discrimination. This applies to commercial web services as much as to traditional services.
Applying the law: an example
Examples of website design issues that are affected by this law abound. For instance, many visually impaired visitors use speech synthesizer software to read the text in the HTML code of web pages and translate it into audible speech. However, many websites include images that contain text as part of the pre-rendered picture file. These may be unreadable by the software. If the text is not embedded in the image properties (using an alt tag) or alternatively available in text somewhere on the website, this could render the content inaccessible visually impaired users, and could therefore be discriminatory for the purposes of the 2010 Act.
Sections 20 and 29(7) of the Equality Act create and elaborate a duty for service providers to make "reasonable adjustments" to enable disabled persons to access their services. Section 20(6) says that with respect to services relating to the provision of information:
the steps which it is reasonable for [an information service provider] to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.
The Equality and Human Rights Commission's Code of Practice concerning the application of the Act notes that this is a ongoing and evolving duty that should be continually reviewed rather than simply considered once (7.27), and one that should be anticipatory and shouldn't wait for the disabled user to want to make use of the site (7.21).
Hosting company plug-pulling
A particular concern for site operators (and web hosts) is that the legislation provides for hosting service providers to pull the plug on inaccessible websites. In provisions similar to those in Regulation 19 of the Ecommerce Regulations, Schedule 25 states that hosting providers will be exempt from liability under the Equality Act in relation to discriminatory material they host if they have no actual knowledge of its discriminatory nature, and they "expeditiously remove" it upon becoming aware of its nature. This presents the possibility of a complainant avoiding court altogether by approaching the hosting company.
Cases involving disability discrimination and websites
Before the Equality Act, there were two widely publicised prospective legal actions against companies on the grounds of discrimination against disabled users arising from their website's inaccessibility. The Royal National Institute of Blind People had intended to pursue the actions, but the (anonymous) companies in question made the requisite changes to their website design before the matter was brought before a court. Though a similar case that did come before a tribunal found that an online exam was non-compliant and discriminatory against a blind candidate, the application of the law to commercial websites is largely untested, and it is difficult to predict exactly how high the bar of reasonableness will be set by the courts.
The World Wide Web Consortium (W3C), the international organisation concerned with providing standards for the web, publishes guidelineswhich are a good indicator of what the court would reasonably expect of website owners and businesses to follow to ensure that websites are as accessible as possible and in line with the Equality Act. At the most basic ("priority 1") level of compliance, these include suggestions such as:
Compliance with both the priority 1 and 2 checklists is recommended. The priority 2 checklist includes:
The W3C guidelines have been adopted as the benchmark test in Australia, following the case of Maguire v SOCOG (2000), which concerned a website for the Olympic Games not being adequately useable by visually impaired people. The RNIB offer free accessibility tips to aid with the technical design of your website, with the World Wide Web Consortium standards in mind. The British Standards Institution provides a comprehensive and non-technical code of practice on web accessibility aimed at helping businesses achieve wider digital inclusion when commissioning or designing a website, with the requirements of the Equality Act 2010 in mind. Commercially, many organisations offer web accessibility audits, which can assess the accessibility of a website and give detailed feedback on what changes could be incorporated to achieve greater accessibility. Engaging with disabled users, for instance through online surveys and feedback systems, and is another excellent way of flagging potential accessibility problems.
Accessibility should be addressed at the web design stage, because many fundamental design decisions have an impact on accessibility; but as the EHRC Code of Practice requires, the duty does not end there: many types of change to a website could have accessibility implications. Although it is not a common basis for legal action, website accessibility is important, both from the perspective of legal compliance and because a more accessible website is a website with a greater potential user-base.
This article was researched and written by Alex Hayes.
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