TechDis Briefing Paper: Institutional Web sites and Legislation

Author: Martin Sloan

The issue of accessible Web sites and legal arguments for providing them has seen much debate over the past eighteen months. In many states across the world, anti-disability discrimination legislation has provided the acorn of an argument that service providers should provide their Web presence in a form that is accessible to the disabled community. However, like the World Wide Web Consortium’s Web Accessibility Initiative (WAI)[1], and its associated guidelines, the providers, and indeed the designers, of the majority of Web sites have by and large ignored these arguments.

However, following a recent case in Australia, there is now arguably very persuasive legal argument for including Web accessibility in the scope of anti-disability legislation in the UK. It is the purpose of this article to review these arguments and then consider their consequences for the Web sites of Higher and Further educational institutions and, finally, to consider how the recent Special Educational Needs and Disability Act 2001 might extend these duties further.

A summary of Maguire v Sydney Organising Committee of the Olympic Games (SOCOG) and its potential effects

The case of Maguire v SOCOG[2] involved a visually impaired Australian who brought an action under the Commonwealth Disability Discrimination Act 1992 (Cth DDA), which the UK Disability Discrimination Act 1995 (DDA) broadly mirrors. In this action, Mr Maguire argued that the organisers of the Sydney Olympics were in breach of their obligations under the Cth DDA by providing a Web site which was inaccessible to the visually impaired like himself. Rejecting SOCOG’s defence that unjustifiable financial hardship would be incurred in making the site accessible, the Human Rights and Equal Opportunities Commission (HREOC) held that as a service provider SOCOG did have a duty to provide an accessible Web site and not discriminate against the disabled. In doing so, reference was made to the W3C’s WAI guidelines as a technical benchmark that SOCOG should have followed and which could be used to measure Web accessibility.

Although Australian case law is not considered binding authority in the UK courts, it can be considered as persuasive when dealing with issues previously unconsidered and undecided. As such, although no such action has yet taken place in the UK, it is likely that in such a case being brought under the UK Disability Discrimination Act (DDA) that Maguire v SOCOG will be presented before the court.

Such an action would be brought under s.25 of the Act for a breach of the service provider’s duties contained within s.19. These are:

· not to refuse to provide, deliberately not provide to a disabled person a service which the service provider provides, or is prepared to provide to the general public

· to make reasonable adjustments under s.21 where the effect of a failure to do so would be to make it impossible or unreasonably difficult for the disabled person to make use of any such service

· not to discriminate in the standard or manner of service offered to a disabled person compared to that offered to the public

Although the term ‘service’ is not defined under the DDA, it is extremely likely that a Web site would be considered as such, whether it is electronic commerce or just a simple information resource. Therefore a Web site which is inaccessible to disabled people is very likely to be considered in breach of the above duties. Further, following Maguire v SOCOG it is likely that the UK courts will follow the Australian lead and consider that providing an accessible Web site is a reasonable adjustment to make, thus removing any defence on the grounds of cost and complexity.

The Code of Practice which accompanies the DDA[3] also requires, under Para 4.9, that service providers continually review their duties and take into account ‘technological solutions to the problems of inaccessible services’. This is likely to mean that even sites designed before the publication of WAI guidelines should have been adapted to take account of these as they were introduced and updated. Indeed, given the increasing importance given to these guidelines (they have now been adopted by and referred to by the European Commission in its eEurope initiative) it is likely that they will become more and more important.[4]

Educational aspects of the DDA

Although the 1995 DDA specifically excludes Education from its scope, this exclusion is in fact rather limited. The s.19(5)(a) exclusion only applies to education itself and certain ancillary services. This means that non-educational or peripheral services provided by the Institution will still be covered by the obligations under Part III of the DDA. Thus, as the Code of Practice suggests, catering facilities, the letting of a lecture theatre as a corporate conference venue and the hiring of a school hall for a Parent-Teacher Association fundraising evening would all be likely to be covered by the DDA (para 2.19). This means therefore that canteens and refectories should be accessible, as should any areas that are available for hire for non-educational use. The Code of Practice also states that the ‘law requires schools, colleges and universities to provide information on access to education for disabled pupils and students.’

Therefore, when considering Part III of the DDA in relation to Institutions’ Web sites, it is likely that all the ‘public’ and peripheral aspects of the site would be covered. Whilst there is not any case law on this issue, the situation applying to transport, the provision of which is currently outside the scope of the DDA, is relevant. Whilst a ferry or bus does not have to be made accessible, the supporting infrastructure such as the terminal buildings does. The Code gives the example of the buffet bar in a ferry terminal and suggests that if this was inaccessible to someone in a wheelchair it is likely to be unlawful.

If this argument were developed, it would seem clear that educational institutions at present do have obligations under the DDA in relation to certain aspects of their Web sites. Taking a sample University Web site, the following areas are contained:

· Information (about the university, studying, jobs, research and commercialisation)

· Information for current students (student support, organisations, clubs and societies, Registry, welfare etc)

· Information for staff

· Information for graduates (news, alumni clubs, careers)

· Information for the press

· General News

· Directory (faculty/departmental information, projects, administration)

· Reference (the library, university museums and art gallery, archives)

· Publications (prospectuses, newsletter, student newspaper)

· Contacts (telephone/fax numbers, email addresses etc)

The majority of these categories are arguably peripheral and not necessarily strictly ‘educational’. Therefore, areas such as information for prospective students, press information, information regarding commercial services offered, alumni information and the Web sites for the university museum and art gallery (which are open to the public) should arguably all be provided in an accessible form. In addition to this, the staff information section and pages concerning recruitment are also likely to come under the employment provisions of Part II of the DDA under s.6, employers must make ‘reasonable adjustments’ (which by analogy with Maguire v SOCOG, is likely to be held to include making company Web sites and intranets accessible). Likewise, under s.4 they should not discriminate in the recruitment of employees, which could happen if the position is advertised on an inaccessible Web site.

Library services and online catalogues may also be subject to accessibility requirements. Although at first glance, it may seem that these services are either educational or within the ‘provision of facilities for research’ exemption contained in the accompanying regulations[5], libraries which offer their services to the public may still have obligations.

If leisure reading is considered, whereby students, staff or indeed the general public, have access to the library this would seem to be a peripheral service and unlikely to come under the research exemption. Although ‘research’ is not defined in the legislation, it is unlikely that it would be given such a broad interpretation – otherwise public municipal libraries would also be exempted. As such, it is arguable that there is therefore a likely requirement that library catalogues are provided in an accessible format. Indeed, given that it is much simpler to provide a Web-based catalogue in an accessible format compared to traditional card-based systems, it is likely that this will increase the strength of the argument.

Whilst the ‘reasonable adjustment’ consideration also applies here, the fact that library catalogues by their very nature supply information in a relatively simple form means that introducing accessibility would be a relatively easy task and therefore a reasonable adjustment. The effect of a successful action on the grounds of leisure reading would effectively mean that the whole catalogue would have to be provided in an accessible format.

Special Educational Needs and Disability Act 2001

Following the passing of the Special Educational Needs (SEN) and Disability Act 2001 in May last year, many of these arguments will become irrelevant. This Act confers similar rights upon disabled students against educational institutions as those available to disabled people against service providers under Part III of the 1995 Act.

Under Part II of the new Act, the DDA will be amended to place duties on educational establishments (including higher and further education) to:

· Not treat disabled students or pupils less favourably without justification; and

· Make reasonable adjustments so that students or pupils are not at a substantial disadvantage compared to those who are not disabled (with the exception for schools regarding the removal or alteration of physical features or with regard to the provision of auxiliary aids and services)

Section 26 of the SEN and Disability Act inserts new sections 28R-28X into the 1995 Act. The general duties that are placed upon a further or higher education institution are set out in the new s.28R. Under this, it is unlawful for the body responsible for an institution to

· discriminate against a disabled person in the arrangements for determining admissions, the terms of admissions or by refusing or deliberately omitting to accept an application for admission (s.28R(1))

· discriminate against a disabled student in the student services it provides, or offers to provide (s.28R(2))

· discriminate against a disabled student by excluding them from the institution, either permanently or temporarily (s.28R(3))

The relevant duty here is not to discriminate in the student services provided or offered, and ‘student services’ is defined as ‘services of any description which are provided wholly or mainly for the students’ (s.28R(11)). Therefore, this would probably cover all areas of an institutional Web site which are not already covered by the general provisions of the DDA, as argued above. The obvious areas here are departmental pages, course notes and e-materials (which will be covered in more depth in a later article) and clubs and student society pages.

The term ‘discrimination’ is defined under the new s.29S and states that a responsible body, in this case the governing body of the institution, discriminates if

(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not of would not apply; and

(b) it cannot show that the treatment in question is justified[6]

The responsible body will also discriminate if the disabled student is ‘substantially disadvantaged’ under s.28T without justification. These justifications are fairly limited and can be detailed as follows:

· it was necessary to maintain academic standards

· it was necessary to maintain standards of any other prescribed kind

· the treatment was of a prescribed kind

· it occurs in prescribed circumstances

· it is of a prescribed kind and occurs in prescribed circumstances

In the case of a general institutional Web site, it is unlikely that any of these could justify inaccessibility. This will mean that those areas of institutional Web sites not already covered by the DDA will become so and will allow a disabled student, or potential student, to bring an action for disability discrimination. As with the DDA, this will be in the County Court in England and Wales or the Sheriff Court in Scotland. If an action is successful, the court is, as in SOCOG likely to order that the site be made accessible and that damages are paid to the successful litigant.

Conclusions

Despite the initial exclusion of Education from the scope of the DDA, it is arguable that many areas of higher and further educational institutions’ Web sites will already be subject to the obligations under the 1995 Act. Although no case concerning Web accessibility has yet been brought in the UK, the arguments supporting such an action are very strong and organisations like the Royal National Institute for the Blind and the Disability Rights Commission have been active in promoting accessibility. Similarly, the new draft of the Code of Practice, which is currently before Parliament, will contain specific mention to Web accessibility for the first time when it is published in the Spring of 2002.

As has been shown, there are many parts of an institutional Web site which could leave the institution open to litigation if they are inaccessible. For those few parts that currently are covered by the Education exemption it is likely that these will be covered when the SEN and Disability Act 2001 comes into force in the next eighteen months. Once this has happened, there is likely to be an undeniable obligation for educational institutions to provide a fully accessible Web site for not just its students, staff and prospective students, but the general public as well.

[2] H 99/115 http://www.hreoc.gov.au/disability_rights/Maguire_v_SOCOG2.htm

[3] Current version: National Disability Council/DFEE Code of Practice: Rights of Access: Goods, Facilities, Services and Premises (1999). Available from http://www.disability.gov.uk/dda/finalcode.html

[4] For a fuller discussion of the DDA and its possible application to inaccessible Web sites, see: Sloan, M ‘Web Accessibility and the DDA’ Journal of Information, Law and Technology 2001(2) available from http://elj.warwick.ac.uk/jilt/01-2/sloan.html or Sloan, M ‘Disability Laws and the Internet’ EBL 2002 3(12) 8.