Archive for September, 2010

Equality Act – new obligations on ISPs and content-sharing sites?

I have previously blogged about the new Equality Act, which largely comes into force on 1 October 2010.

However, the new Act also includes a section that might worry ISPs and web hosts.

Section 206 and Schedule 25 broadly mirror the provisions that implement the e-Commerce Directive in the UK (the Electronic Commerce (EC Directive) Regulations 2002) in respect of the liability of so-called information society service providers (ie ISPs and website hosts). The effect of that wording is that hosts are not liable for breaches of the Equality Act by websites hosted on their systems, until that website is brought to their attention.

This means that if an ISP hosts a website that contains material which is discriminatory against a person on the grounds of sex, race or sexuality etc, then if that ISP fails to remove the content it could itself become liable for the content.

In other words, the “innocent dissemination” defence flies off.

To the extent that hosts already have similar obligations in respect of material that is defamatory or otherwise illegal, these obligations are not unexpected.

The sting in the tail
However, a consequence of the drafting is that these provsions may also force a hosting provider to consider complaints that third party websites hosted on its servers are inaccessible to users with disabilities. If a website is inaccessible to a disabled user, then that may cause discrimination under the Act, in which case once aware the host may be liable for that discrimination unless it “expeditiously removed the information or disabled access to it.”

In order to ensure that the host is not liable under the Equality Act for any alleged discrimination, the host may have to investigate that complaint and take down the site. But it is unlikely that the host will have the information (or resources) to be able to determine whether a site hosted on its servers discriminates against the individual in question on the basis of that individual’s disability. For one, the host won’t know through what other channels the service in question is provided.

To avoid potential liability, the only option is to suspend access to the site and tell the client to resolve the dispute with the complainant.

And another…
And it’s not just traditional website hosts that have to beware. For example, social networking sites and other sites that host user-generated content have, in my view, generally been able to argue that they are not liable under the DDA for content posted in an inaccessible format by their users, on the basis that the content is not provided by the website operator. They simply provide the infrastructure within which to post that content. It is up to the user to make sure that what he or she posts is accessible to all users.

But does the new Act allow a deaf person to contact Youtube and complain that as the content published by a commercial organisation through its Youtube channel does not contain subtitles (and is therefore inaccessible), Youtube should remove the content or be liable for it?

I’m don’t think it should (for one, Youtube’s archives would be decimated overnight), but that’s what the new law appears to say.

Will any ISP pull a site or content on the grounds of its inaccessibility, rather than risk becoming liable? That remains to be seen. But it certainly gives web accessibility campaigners a potentially powerful tool, albeit I don’t think that’s what parliament intended.

Equality Act – one month to go for service providers and employers

For me, 1 October 2010 is my last day as an unmarried man. For service providers, employers and educational institutions in the UK, however, 1 October is the day on which the Equality Act 2010 largely comes into force.

What is it about?
The Equality Act attempts to consolidate into a single piece of legislation, the laws relating to race, disability, sex, age and other forms of discrimination. This is an ambitious project, and has led to some slightly odd drafting with the drafter attempting to shoehorn the anti-discrimination principles into single sections covering all forms of discrimination – using the obtuse term of “a protected characteristic”.

It is ironic that an act of parliament aimed at improving accessibility is in itself less accessible than its predecessor, the DDA. Whilst some have criticised the DDA for not expressly saying “websites must be accessible”, I think the DDA’s principles approach to drafting was actually one of its strengths. The Equality Act has, however, taken this a step too far.

What is the impact on web and IT accessibility?
In general, the duties remain. Whilst the new Act essentially replicates the previous law, there are some changes to be aware of in respect of the laws applying to the accessibility of IT and web-based services. Here are some of the key changes:

  • there is a new concept of indirect discrimination. Indirect discrimination does not require knowledge. This means that an inaccessible website will likely breach the Equality Act, even if the operator of that website did not know that the design feature in question caused it to be inaccessible to a person with a disability. The obligation is, however, subject to the justification defence (see below)
  • There is now a single justification test, for those limited situations where discrimination can be justified. Discrimination can now be justified where it is considered a “proportionate means of achieving a legitimate aim.” In my example above, this might give a service provider a defence if, for example, it introduced a new security measure for the website that was aimed at reducing fraud, but had the effect of making the website inaccessible to disabled users. This could apply even if the service provider knew about that consequence.
  • the threshold for the obligation to make “reasonable adjustments” is lower. Previously, reasonable adjustments were required only where the service provider had a practice, policy or procedure “which makes it impossible or unreasonably difficult for disabled persons to make use of a service”. Now the test is simply that the provision, criterion or practice placed the disabled person at “a substantial [more than minor or trivial] disadvantage”. This means that service providers, employers, and educational institutions are more likely to be obliged to make reasonable adjustments. There is also no justification defence to this obligation (on the grounds that this should already be covered by the “reasonableness” test).

Specific obligation to provide information in accessible formats
The new Act also includes a specific section dealing with the obligation to make reasonable adjustments to the manner in which information is provided. Whilst undoubtedly aimed at those with “print disability”, it also ensures that service providers and employers have a duty to take reasonable steps to provide information in accessible electronic formats. This covers not just websites, but also information on intranets or that is issued by email:

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

See what I mean about the inaccessible drafting?!

New guidance
To accompany the new Act, the EHRC will be publishing new codes of practice. These codes will replace the current codes issued by the EHRC’s predecessor, the DRC, under the DDA.

In the meantime, you can access the draft code of practices from the EHRC’s website.


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