View Full Version : Accessibility and the threat of legal action
James Bull
05-02-2008, 05:56 PM
...but none have made it a business or business case out of it. Lisa did and good on her.
The business case can be put to clients in a couple of ways.
The "positive" message: an accessible website will be easier to use for more people, therefore arguably a better sales/communication/marketing tool.
The "negative" message: the possibility of litigation for breaching anti-discrimination laws.
For most businesses, unless they are large corporations or government bodies, litigation is a very distant possibility, but anyone talking website strategy with a client should at least mention it. The Victorian Government has this resource about accessibility-related legal cases (http://www.egov.vic.gov.au/index.php?env=-categories:m1060-1-1-8-s-0&reset=1) that might be of interest.
The business case can be put to clients in a couple of ways.
The "positive" message: an accessible website will be easier to use for more people, therefore arguably a better sales/communication/marketing tool.
The "negative" message: the possibility of litigation for breaching anti-discrimination laws.
For most businesses, unless they are large corporations or government bodies, litigation is a very distant possibility, but anyone talking website strategy with a client should at least mention it.
The sell from the big stick of litigation just does not work in a real world scenario . You are better of appealing to the audience slice and the aspect of negative audience reaction when it is not accessible.
The key is don't make accessibility a feature, an add on. Make it part of the core, like usability.
The extension for the mobile web is another aspect. The is seen as a different platform, that has a separate sell I find.
stinhambo
05-02-2008, 07:53 PM
Clients give you a big blank expression when explaining accessibility unless they are in that industry or Government based.
I imagine that for some agencies it will be an up-sell for when it is really necessary.
Clients give you a big blank expression when explaining accessibility unless they are in that industry or Government based.
I imagine that for some agencies it will be an up-sell for when it is really necessary.
I think you are missing the point its not an extra. Is standards compliance an extra?
This is why the holistic approach. Make it part of you day to day design and development methodology. In some cases don't even try and sell it. Make it like the application of "web standards" just do it with out thinking ... "humm should I apply good accessibility practice to this site". As a web professional the answer should be "we always a make our sites accessible".
James Bull
05-02-2008, 09:08 PM
The sell from the big stick of litigation just does not work in a real world scenario . You are better of appealing to the audience slice and the aspect of negative audience reaction when it is not accessible.
The key is don't make accessibility a feature, an add on. Make it part of the core, like usability.
Agreed...but if the web developer/consultant does not give advice to the client about accessibility/discrimination considerations, and the one-chance-in-a-million event occurs and the client gets sued, then who is the client going to be unhappy with?
The big stick is not a good sell, but it definitely comes under the heading of professional duty of care.
ashul
05-02-2008, 09:43 PM
One of our clients received this from the contact form on their website:
DISABILITY DISCRIMINATION ACT BREACH
04/02/08
Hi,
My name is Les Kerr and I am vision impaired.
I tried to access your site but found it very difficult if not impossible because your website is not disability accessible as required by the Federal Disability Discrimination Act. Your site should comply with Web Content Accessibility Guidelines 1.0, Priorities 1, 2 & 3.
If you require it, and you provide me with an email address, I am more than happy to provide a detailed report of where your site fails to achieve the required standards.
The following link to the Human Rights and Equal Opportunity Commission (HREOC) provides the guidelines that should be followed to ensure your website complies with the law and is therefore legal:
www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html (http://www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html)
If you fail to bring your website up to the required standard, you will have a complaint made about it to the HREOC. If the complaint is upheld you will have to bring your website up to standard anyway and possibly pay compensation. You will also have to deal with the negative publicity this matter would generate for your business.
For your information there is already legal precedent (Maguire vs SOCOG) requiring websites to comply with the Federal Disability Discrimination Act.
Please be aware that the requirement to comply with this law extends to everything on your website, including advertising from other businesses.
If a website design business made your site, I would suggest you contact them to have your site bought up to standard. You may also like to inquire from them why they designed a non-compliant site in the first place, especially since the Act has been in place for 15 years and the website guidelines available for 8 years. Remember though that if your website designer advises you to ignore this email, it is you that the complaint will be made against not them.
If you designed the site yourself, I strongly urge you to consider getting assistance from a website designer that is aware of the required standards.
I am currently putting together a list of website designers that have a commitment to making websites up to the required standard. That list will be available soon should you require it.
Could you please advise me by return email, within 2 weeks of the date on this email, when you will have your website up to the required standard. I realize you will probably not be able to fix your website overnight. However, if you do not provide me with a reasonable date that the site will be fixed, I will have no option but to lodge a complaint with the HREOC.
Regards
Les Kerr
<phone/address removed>
Email: <removed>
Obviously the website was accessible upto the contact form, but his (I am assuming Les is a bloke) comments and threat was actually quite interesting given our other discussion on Ideas4 and came hot on the heels of James' question to Lisa at Ideas4.
I have my own thoughts on this matter, but would be interested to hear what you guys think..
A
Agreed...but if the web developer/consultant does not give advice to the client about accessibility/discrimination considerations, and the one-chance-in-a-million event occurs and the client gets sued, then who is the client going to be unhappy with?.
Thats just a matter of pointing out that some accessibility aspects are being considered within the nominated budget. But this application is by no way extensive. Simple one line in a proposal. And mentioned at startup and sign off.
One of our clients received this from the contact form on their website:
Obviously the website was accessible upto the contact form, but his (I am assuming Les is a bloke) comments and threat was actually quite interesting given our other discussion on Ideas4 and came hot on the heels of James' question to Lisa at Ideas4.
I have my own thoughts on this matter, but would be interested to hear what you guys think..
A
The thing is HREOC s not about to go hauling people off to court. They discuss the matter first and will negotiate with the parties concerned.
If the site owners are making an effort to comply within budgetary constrains then it is usually left at that. HREOC is not a big stick wielder any more.
That said the option is still there.
I know of client that go a letter like this, so he pulled the offending pages on the site! The person concerned then complained the pages had been pulled. If a client doesn't want to pay for a clean up of an old site. You can't force them
The entire tone of the letter is wrong and very alarmist. But this will be out of frustration.
I'm interested in how Les is obtaining this information on who is showing a "commitment to making websites up to the required standard".
Is there some magical register.:)
Maybe Les should be working with the Web Community To help people improve their sites.
James Bull
05-02-2008, 11:50 PM
Thats just a matter of pointing out that some accessibility aspects are being considered within the nominated budget. But this application is by no way extensive. Simple one line in a proposal. And mentioned at startup and sign off.
Maybe, maybe not. Depends on the situation. Suppose that I'm engaged to prepare functional specs that a client can take to their choice of web developer. It would be careless of me to neglect to discuss accessibility with the client in more detail than just a one-liner. Of course, if they choose a developer who builds to standards, the issue is to some extent automatically taken care of whatever the client thinks.
Maybe, maybe not. Depends on the situation. Suppose that I'm engaged to prepare functional specs that a client can take to their choice of web developer. It would be careless of me to neglect to discuss accessibility with the client in more detail than just a one-liner. Of course, if they choose a developer who builds to standards, the issue is to some extent automatically taken care of whatever the client thinks.
Discussion on Accessibility and why you have in specs can be presented, but anything more than half a page out be overkill. To be frank that would only b in there to educate the client, not the development tea. I would recommend discussing it verbally more than in writing. As in my experience this sticks more with a client.
Yes you should reference towards a level of accessibility compliance.
However implementation wise it is not until the Front End Developer, content writer and and back end developer are engaged that the main stay of the accessibility compliance comes into play, referencing off the specification.
You could have specified a level of compliance and a direction for holistic based testing. At this point you are off the hook. Full explanation on what this is can be explained in terms of small amount of material with references.
Accessibility is more than just "standards" compliance, but I get your point.
stinhambo
06-02-2008, 08:16 AM
I think you are missing the point its not an extra. Is standards compliance an extra?
This is why the holistic approach. Make it part of you day to day design and development methodology. In some cases don't even try and sell it. Make it like the application of "web standards" just do it with out thinking ... "humm should I apply good accessibility practice to this site". As a web professional the answer should be "we always a make our sites accessible".
Yes but if you are pitching against another agency and you try to pull it out as a USP.
But I agree that we should strive to make them accessible no matter what.
USP (unique selling point) have a habit of being added as optionals, and hence get cut in the bid to win the work. Hence we all loose.
maybe we should use a USP of using tables for design, which is quicker for some designs. make it a USP, "we cut the site faster so we are cheaper"
nickobec
06-02-2008, 11:26 AM
Ashul that email your client received is incorrect.
It is does not matter if a website meets WCAG 1 A, AA or AAA or not, it can breach the Federal Disability Discrimination Act by discriminating against people with disabilities.
HREOC take WCAG1 compliance into account when dealing with complaints. HREOC aim is to resolve the dispute amicably. They can not take court action.
That is a matter for the complainant, and it now takes place in the Federal Magistrate Court not HREOC unlike Maguire vs SOCOG. So the complainant needs either a good lawyer willing to do it pro bono and a good case or lots of cash. And if things go pear shaped they could end up paying the defendants costs (SOCOG estimate $500,000)
Between 2000, Maguire vs SOCOG and 2006 there was three complaints to HREOC that HREOC chose to take on and all were resolved amicably. There have been no court cases involving websites and the DDA in Australia since Maguire vs SOCOG.
The Target case in the US is interesting in that it is a bad implementation of Amazon ecommerce engine. Target are taking a slightly better line than SOCOG, but are not attempting to resolve the problem.
As for your client, Ashul email Les, find out what the problem is and see if it can be fixed easily, keep your customer happy.
If you can't fix it, email him and explain why. If the site is going to be replaced in the near future, tell him, especially if you will fix the problem in the new version. Ask him to be a beta tester and give him a discount of the products or services.
Franki
06-02-2008, 11:42 AM
just a side note also, to me accessibility is not just about catering for vision imparied et al. It's also about making the site "accessibile" on other platforms - not just web browsers on your tradition computer - ie PDA, mobile, etc... and this is where the business case can be very strong.
I'll bite the bullet and use my site as an example - it's not so much catered for vision impaired (not my target audience), but I don't think Jaws and the like would have problems with it. The site is "accessible" and "usable" on PDA/mobile/ect...
madpilot
07-02-2008, 11:00 PM
I'll bite the bullet and use my site as an example - it's not so much catered for vision impaired (not my target audience), but I don't think Jaws and the like would have problems with it. The site is "accessible" and "usable" on PDA/mobile/ect...
Usable? yes. Accessible? Maybe. There is a fundemental, yet subtle difference here that is the basis for having Interface designers. Without this point, you could just build "standards based" layout and everyone would be happy.
An analogy: Say a person wants to learn Excel, and they they are given two choices - Read Excel for dummies or read the source code for Excel. One might argue that you can learn everything that you can learn from the dummies book by reading the source code, so both methods are usable, but one is definitely more accessible than the other.
Sure, dumping out the same structure document to a mobile or a screen reader or a braille keyboard will result in the same information being conveyed (ie. standards based code is USABLE), but it doesn't mean it is the best structure for a given device (ie it isn't ACCESSIBLE).
This is exactly what Lisa was trying to point out with the Australia online paper search example. Beautifully constructed code, but not totally accessible to all users. At the end of the day, this is why a vast majority of websites probably aren't accessible, because we forget about this nuance.
Franki
08-02-2008, 10:49 AM
Yes, standards based codes doesn't mean accessible/usable, and one definitely need to take the UI into consideration. The reason I group all other devices into a separate CSS is because I have made a simplified UI (which is not an accident by the way!) that will work and is accessible across these other devices, hence...
newwebgeek
21-01-2009, 12:45 PM
I've read this thread with interest, we apparently had a similar email from Les Kerr (unsurprising given he has apparently viewed a staggering 30,000 sites during his one-man crusade against the Web world) some months ago that appears to have been ignored and deleted - I'd like to get in touch with the man and hoping someone may be able to provide contact details somehow? Brand new to this forum, so unsure how this would work... Unfortunately a whitepages.com.au search for L Kerr of Wooloowin returns nothing, neither does a Google search.
Any help, much appreciated and in confidence.
ashul
21-01-2009, 12:57 PM
PM me your email and I can send you the contact details
baronoz
21-01-2009, 03:01 PM
The one-man crusade replies:
I am not sure whether I am breaking any Forum Rules but I am more than happy to post my contact details here:
Les Kerr
07 33578734
0422932185
lgkoz@optusnet.com.au
I am more than happy to talk to anyone about this issue but I hgave to ne honest if the tone of newwebgeek is the sort of tone you take with me if you contact me then it will be a short conversation.
You all may like to take a look at the thread " Legal requirements for public websites" under the chit chat forum where I have mad a couple of posts in relation to this issue.
I have also advised there that I have commenced Court action against Virgin Blue for disability discrimination over the accessibility of their websites. I am also planning more legal action against other parties.
IF i have contacted yourself or a client previously about the accessibility of their website, I hope you do take it seriously and do something about it because I am making additional complaints every single day now. And I intend to continue to do so until I start seeing an improvement in the accessibility of Australian websites.
ashul
21-01-2009, 05:15 PM
The one-man crusade replies:
I am not sure whether I am breaking any Forum Rules but I am more than happy to post my contact details here:
:) I had not posted your details on the forum for fear of you being spammed/abused - no rules against posting them on the forums AFAIK..
I posted this in the previous thread and Heist also expressed interest in knowing the answer and the applicability:
As a small business owner there are rules that govern when you need to provide certain levels of accessibility such as toilets, ramps etc for people who have disabilities. For example, I don't need to have disabled toilets in my home studio.
Are there similar rules that explain when a website needs to make sure all their accessibility bases are covered?
Ironic Side Note
I went to the Disability (Access to Premises - Buildings) Standards (http://www.ag.gov.au/premisesstandards) site to find out for myself about the building codes the info was all locked into propriety formats of doc, pdf or xls. That's not very accessible to my anti-propriety software OCD.
Billion Dollar Business Idea #786
Someone should start a web based Accessibility interface company that provides Phone, Live Chat and/or Personal support to help people with disabilities access websites. Then companies like Virgin Blue could subscribe to your service and when someone has an accessibility problem with the site they just call/chat etc with someone who fills out the forms or helps them negotiate the site.
Now tell me that's not a brilliant idea yeah? YEAH!
IF i have contacted yourself or a client previously about the accessibility of their website, I hope you do take it seriously and do something about it because I am making additional complaints every single day now. And I intend to continue to do so until I start seeing an improvement in the accessibility of Australian websites.
Your posts just make me feel like some team of lawyers are about to mug me in an alleyway for developing a Flash micro-site.
Perhaps more so because I've yet to see you post constructive feedback on any of the sites that request such stuff on these forums. I think that would be more helpful to the majority of developers than suing their faces into the ground.
ashul
03-02-2009, 03:41 PM
This is the irony - he claims to help those that ask for it (per his email)- That is what we have done on these forums and we continue to say we want to and are willing to improve to make him happy - the fact that he cannot tell us everything due to the court case aside there must be some feedback he can give us - aside from the subjective "my issues with the sites in question"..
This is the irony - he claims to help those that ask for it (per his email)- That is what we have done on these forums and we continue to say we want to and are willing to improve to make him happy - the fact that he cannot tell us everything due to the court case aside there must be some feedback he can give us - aside from the subjective "my issues with the sites in question"..
Disagree. We know the issues are
Font contrast.
Graceful font scaling (on older non zoom browsers FF etc).
Bad Alternative text.
These are not unknown for Les's condition. Les is a classic case. We always assume people have the latest assistive tech such as Dragon, Zoomer, Jaws etc. But the reality is this software costs, often people have to make do with cheaper alternatives.
We really have to start looking at our sites with a base browsers from an accessibility view point. As this is view the average aging population is going to face.
ashul
03-02-2009, 05:04 PM
thanks Gary, re: known issues.
by base browser do you mean IE6 and work with hacky stuff or go back to Netscape 4 and work pre-CSS?
with assistive tech - I know you get government funded rebates and non-profits that do help - perhaps that is an opening for ISP's to bundle assistive tech with the monthly DSL plan?
heist
03-02-2009, 05:08 PM
To answer my own question from the other thread, in regard to our legal obligations... it seems pretty cut and dry:
http://www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html
basically...
2.2 Equal Access is Required by Law
"[...]Equal access for people with a disability in this area is required by the DDA where it can reasonably be provided. This requirement applies to any individual or organisation developing a Worldwide Web page in Australia, or placing or maintaining a Web page on an Australian server. "
"This includes [...the] provision of services including professional services",
It goes on to say "services" covers just about everything, and that "The DDA applies to services whether provided for payment or not."
so really - everything needs to be accessible. even the flash microsite.
Further reading: http://www.w3.org/TR/WCAG20/
ashul
03-02-2009, 05:13 PM
this is why i keep saying the law is outdated and akin to that Indonesian law that saw that poor soul put in for 3 years for criticising the monarchy.. legislation by bureaucrats who would not know what a browser is let alone URL
thanks Gary, re: known issues.
by base browser do you mean IE6 and work with hacky stuff or go back to Netscape 4 and work pre-CSS?
FF, IE 6 being Font Scalars verses Page Zoomers.
with assistive tech - I know you get government funded rebates and non-profits that do help - perhaps that is an opening for ISP's to bundle assistive tech with the monthly DSL plan?
ISP - no profit.
NFP - yes but there is only so much they can do, and it some cases their are too many people and basically grants are being spread too thin.
Rebates are for only certain things, and its a rebate, you have to have the money to get it back.
baronoz
03-02-2009, 06:29 PM
Tuna
You are without doubt one of the most switched on web people I have come across...I wish there were many more like you.
Those issues you raised are some of the more basic problems I., and many more like me have with websites. What saddens and frustrates me is that all those issues are so simple to rectify. Try to get them rectified is the problem though...for some reason site owners refuse...whether that is a decision they make themselves or in consultation with their web designers, I don't know.
As for assistive technology etc. the amount of Government funding for this is minute. In Queensland last year the State Government allocated 2 million dollars to be shared amongst the 800 000 odd disabled in the State. Most assistive technology for pc's is around $1000 and you have to ahve a powerful enough system to operate it.
NFP such as Vision Australia do not give anything away, you have to pay top price for everything and since most disabled people are on pensions you have to save for a long long time to afford even the most basic gear.
heist
At long last someone actually went to the AHRC website and read what it says. As I have said many times in these forums...it's the LAW. Whether you like it or not it is and I have to be honest your chances of ever getting it changed are probably nil. Rather than whingeing about it maybe it would be better looking at ways to comply with it. Just to let you know that there is currently an ammendment to the DDA going through the Senate. If it is passed which is highly likely then the AHRC will be able to make a set of legally enforceable web guidelines that must be followed or not only will a business be able to have a complaint made about it...they will also be able to be fined.
And yes that means Flash has to be accessible....but flash can be made accessible so I don't really see what the issue is.
As for offering help...as I have also said elsewhere...I offer help all the time. It is normally ignored especially when a website owner goes back and talks to their website designer. I could put a list of suggestions up here but after the way some of the things I have said have been attacked and nitpicked, I am not really interested in doing that. I wll continue to offer advice to those companies i contact and to any web designers I think have a genuine interest in listening...not to those that just want to argue the toss over every little issue.
For those of you that keep harping on about the Virgin Blue site...go and look yourselves. Let's have a little test and see if any of you can notice some of the accessibility issues with the site. Tuna has already given you all a big heads up.
I will be interested to see your comments and how many actually even bother.
heist
03-02-2009, 07:22 PM
this is why i keep saying the law is outdated and akin to that Indonesian law that saw that poor soul put in for 3 years for criticising the monarchy.. legislation by bureaucrats who would not know what a browser is let alone URL
mucho hyperbole ashul, but i agree that the law as stated above could be used to punish those i personally believe don't deserve it.
Those issues you raised are some of the more basic problems I., and many more like me have with websites. What saddens and frustrates me is that all those issues are so simple to rectify. Try to get them rectified is the problem though...for some reason site owners refuse...
dude you're preachin' to the choir. we often have to fight our own clients over the ideas they come up with for their websites. sometimes it's like beating your head against a brick wall. sometimes, you do some really average shit just to get paid / get it over and done with.
but you know, i believe you when you say it's easy. i think it probably is too - if you're dealing with people who know the rules, and it's up front; if the designer has taken accessibility into account from the outset; if the coder has accessibility in mind; if the CMS spits out accessible markup, etc. it'd be a breeze. but it can't be an afterthought.
that's the bit that needs to change. we need to channel a bit of that pro-div, anti-table kind of zeal into accessibility zeal. we need to apply a bit of learning.
one question: how do other types of media deal with this? is everything on TV also subtitled (i see the teletext symbol which implies they're not)? are all print items made available in braille? all radio shows transcripted online in an accessible fashion?
honestly i'm not looking for these old medias' failures to be a justification for shitty work, i just want to know what the parallels are. i'd love the web to be as inclusive as possible, an example to these others.
adrianlynch
03-02-2009, 07:54 PM
Les how about pointing out some of the 'less obvious' issues on a site (obviously not the virgin site though!), running us through some suggestions.
A
PS. Completely off topic - the HREOC needs to get it's act together on it's own website... absolutely appalling.
one question: how do other types of media deal with this? is everything on TV also subtitled (i see the teletext symbol which implies they're not)? are all print items made available in braille? all radio shows transcripted online in an accessible fashion?
I believe all theatrical releases are required to have a hearing impaired subtitling available for alternative purchase. If their being broadcast they also need to obey the TV rules below.
All TV commercials and programs are required to be subtitled (I think that's unless they are live-to-air). They also must obey certain audio quality settings. And any legal disclaimers or notices required by law (such as the govt. sponsorship ones) are reviewed for legibility before being allowed to broadcast.
Print items that are required for something, such as government forms, have associated regulations and guidelines to assist legibility. Disclaimers and other legal notices also have to be legible (with associated rules) and true.
Radio shows have to obey certain audio quality settings. I don't believe they get transcribed ... but then I don't know much about radio.
Just because it may also be of interest, the typical workflow for getting a TVC subtitled is to tick the "Pay for someone to make you Subtitles" box during your submission to whichever station distributor you use. They then send off your H.264 to the subtitle people who wack out a transcript and make it available to the necessary stations.
Now accessibility for web would be much less of a problem if we had a single browser standard (ugg! that word!).
p.s.
If anyone wants to by a Flash Video subtitling engine, give me a call. Start your own YouTooTube :P
Franki
04-02-2009, 02:52 PM
To answer my own question from the other thread, in regard to our legal obligations... it seems pretty cut and dry:
http://www.hreoc.gov.au/disability_rights/standards/www_3/www_3.html
basically...
2.2 Equal Access is Required by Law
"[...]Equal access for people with a disability in this area is required by the DDA where it can reasonably be provided. This requirement applies to any individual or organisation developing a Worldwide Web page in Australia, or placing or maintaining a Web page on an Australian server."
"where it can reasonably be provided" = define "reasonably", reasonable for who? HREOC? Site owner? People like Les?
"on an Australian server" = host your site overseas? Seems to me, like most other things, it's better just to send money and jobs overseas...
Political Correctness for PC's sake and threats give me the shizza. What happen to commonsense and working towards a common-good these days?
RE the SOCOG case, had they handled it with differently (instead of rofltao), it would have been a different story...
vBulletin® v3.8.4, Copyright ©2000-2010, Jelsoft Enterprises Ltd.