A European Disability Act for the Web?

Deep down in a recent white paper launch by European Commissioner for Information Society and Media, Viviane Reding, the Commissioner gave an indication of the Commission’s plans in respect of the accessibility of websites.

In the UK, the main legislation in this area is the Disability Discrimination Act 1995 (as amended) (DDA). In summary, the DDA places a general obligation on organisations not to discriminate when providing services. The DDA doesn’t specifically mention websites, but then the Web was barely a twinkle in Tim Berners-Lee’s eye when the bill that became the DDA was being discussed by parliament. That said, the flexible, principles-based approach of the DDA has proved relatively successful and adaptable, and there is a reasonably common consensus that the DDA imposes a general duty on the operators of websites to make those websites accessible to people with disabilities. For a deeper discussion on web accessibility and the DDA, see this paper.

To date, European-derived law has been limited, and its impact in the UK even more so. Yes, there are some European rules on equal treatment, but the main impact on accessibility has been on public procurement. Here, the current (EU-wide) rules governing procurement by public sector organisations require the procuring organisation to specify its requirements in relation to accessibility and design-for-all when developing its technical specification. See this legal update for more on that. However, the Commission has not yet flexed its muscles in relation to the private sector.

So what of the latest announcement? Well, we’ve seen this before. Back in 2006 the Commission announced European-wide accessibility rules but in the small print it became clear that the “rules” were in fact an action plan, and that its scope related only to the public sector (see previous paragraph).

This time, however, there is talk of encouraging all member states to embrace and endorse version 2.0 of the W3C‘s web content accessibility guidelines (WCAG) – a set of technical standards developed by technical experts. From a UK point of view, this is unlikely to lead to a seismic change – the British Standards Institute’s PAS 78 and the draft British Standard for web accessibility (BS 8878) both make reference to the WCAG, and I would expect a court to look to these documents when determining appropriate practice (particularly given that their development was sponsored by the Disability Rights Commission and its successor, the Commission for Equality and Human Rights). So far so good, then.

However, the most interesting part of the speech was how Commissioner Reding thought that the WCAG should be embraced by member states:

“I believe the way we should do this is to develop together with stakeholders a European Disability Act.”

Quite what form a “European Disability Act” will take remains to be seen. Will it once again apply only to the public sector or will it also apply to private sector organisations? What else will it say? Will it undermine the principles-based approach of the DDA?

One must assume that this will be implemented by way of a new Directive or Regulations. That being the case, I hope that those new rules are carefully drafted. One of the great benefits of the DDA is that (unlike equivalent, overly prescriptive, legislation in the US), its generic and flexible nature means that it can be easily adapted to changing technology. Hardcoding the WCAG 2.0 and other Web-specific rules into European law might be good on one level (in that it will force the introduction of some form of web accessibility requirement under national law), but I fear that further down the line this will cause service providers and courts to tie themselves in knots as they try to interpret and apply law that, quite frankly, can’t keep up with evolving technology.

Martin Sloan

3 Responses to “A European Disability Act for the Web?”

  1. 1 martinsloan October 16, 2009 at 3:44 pm

    Jack – thanks for your comments. You are right to point out that WCAG 2.0 should prove to be more flexible than its predecessor.

    My concern isn’t so much with WCAG 2.0 itself (and my reference to “technical standards made by technical experts” was not intended to be-little them, but rather summmarise what they are for non-techies), but rather with the prescriptiveness of any new laws that the Commission proposes and the way in which the WCAG are referred to in those laws. For example, would there be a uniform required level of success criteria? How would the mandatory requirement be implemented?

    Two other thoughts.

    What about an organisation’s other legal obligations – say, for example, FSA rules on information security, which may prevent the use of an accessible log-in process on an Internet banking website the grounds that it can be hacked using keystroke logging software, compromising account security? Under the DDA, this may be permissible if the bank can offer affected individuals an equivalent standard of service through, for example, a freephone telephone service.

    I am also not clear what the impact of not complying with the WCAG would be. At present, an organisation only breaches the DDA if an individual can show that the organisation has breached its obligations not to discriminate against him or her. Would the new law create a criminal offence if an organisation failed to comply with the WCAG (regardless of whether or not anyone was actually discriminated against), or is the intention that the organisation would have a defence in relation to a discrimination claim if it can show it complied with the WCAG?

    The WCAG are undoubtedly a useful and relevant tool, but are one part of a wider jigsaw in terms of “access for all” and promoting non-discrimination.

    The difficulty with technology focussed legislation is that the law often can’t keep up with technology and the way in which it is used – particularly given how long it sometimes takes for European laws to be implemented!


  2. 2 JackP October 16, 2009 at 1:04 pm

    Describing WCAG 2.0 as “a set of technical standards developed by technical experts” is to do it an injustice. For the most part, the standards are easy to understand, they are described from the point of view of the user. In addition, to say they have been developed by technical experts is to dismiss the massive role that various disability advocates have had in putting the stuff together.

    Indeed, one of the guiding principles of WCAG 2.0 was that it should be technology-agnostic: it’s all about user experience, not particular technical compliance (and yes, this is unlike WCAG 1.0). So (and as James said on AccessifyForum), this means that there shouldn’t be a problem as regards new technologies.

    I have to agree however that I do like the flexible approach of the DDA. This is obviously ‘one to watch’.

  1. 1 European Commission proposes new laws on accessibility of public sector websites « Brodies TechBlog Trackback on December 7, 2012 at 12:48 pm

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