Out-Law News 4 min. read
23 Aug 2004, 12:00 am
In the UK there is a general obligation on the operators of web sites to make their sites accessible to the disabled, under the Disability Discrimination Act of 1995. In the US, however, the obligation has been less certain.
The best known relevant provision of US law is known as Section 508. This is actually a reference to an amendment that was made to the country's Rehabilitation Act of 1973. This amendment requires equal access for persons with disabilities to the Federal Government's electronic and information technology.
However, Section 508 stops short of placing an obligation on the operators of private sector web sites, such as Priceline.com. It is the buying power of federal Government that makes many private companies decide to comply with the terms of 508 – because compliance may help them to win federal work.
An obligation on private sector companies can, however, be found in the Americans with Disabilities Act of 1990, or ADA. The language of this legislation differs from the UK's Disability Discrimination Act.
The UK law places an obligation on providers of services to make their services accessible to the disabled, including "access to and use of information services". In contrast, America's ADA refers only to making "public accommodations" accessible to the disabled.
In 2002, a federal court ruled that a web site was not a place of "public accommodation". Dismissing a lawsuit against Southwest Airlines, Judge Patricia Seitz, in the US district court for the Southern District of Florida, reasoned that the ADA only applies to "physical spaces," such as restaurants and cinemas. She found that "the plain and unambiguous language of the statute and relevant regulations does not include internet web sites among the definitions of 'places of public accommodation'."
That case concerned a blind internet user called Robert Gumson. The judge characterised his arguments as "emotionally attractive" but not "legally viable". She concluded that Gumson was "unable to demonstrate" that Southwest's web site impeded his access to "physical, concrete" places such as an airline ticket counter or travel agency, and she closed the case.
However, New York's Attorney General has taken a different view of the federal ADA and also made reference to civil rights protections in state laws.
Eliot Spitzer's position was stated as follows:
"...by failing to ensure that the PRICELINE.COM web site is accessible to the assistive technology used by the blind and visually impaired, Priceline has not complied with the ADA, New York Executive Law or New York Civil Rights Law."
A similar statement was made in relation to Ramada.com.
Spitzer's view is consistent with a Congressional hearing of 2000, which concluded that, "the ADA does apply to the internet". The settlement figures won by Spitzer could be the first to be paid in relation to web accessibility since the Organising Committee of the 2000 Sydney Olympic Games was fined AUS $20,000 in the first decision ever to identify web accessibility as a legal obligation.
Spitzer entered into an Assurance of Discontinuance with each company. These documents do not involve any admission of wrongdoing, but include an undertaking both to make a payment for the costs of the investigation ($40,000 for Ramada.com and $37,500 for Priceline.com) and to make improvements to each site's accessibility.
The required improvements are identified with reference to a selection of Priority 1 and Priority 2 checkpoints from the Web Content Accessibility Guidelines of the World Wide Web Consortium's Web Accessibility Initiative. Section 508 dictates a similar selection of Priority 1 and 2 checkpoints, also known as conformance Levels A and AA.
Spitzer's demands for accessibility carry an exception for third party content on each site. However, the exception appears to be more lenient for Ramada.com than it is for Priceline.com.
For Ramada.com, the exception applies to "pages, components and content" on the site that are "displayed directly by a third party" using the third party's software and server. Presumably this means that Ramada will not be penalised for displaying inaccessible banner ads that are served by a company such as Doubleclick.
For Priceline.com, the exception is limited to "pages" that are displayed directly by a third party using the third party's software and server. With respect to those third party pages, Priceline.com is obliged to "request" that each provider meets the various checkpoints identified by Spitzer. There is no equivalent obligation on Ramada.com.
Spitzer also emphasised that once the companies were notified of the accessibility issues by his office, they worked "cooperatively and creatively" with his Internet Bureau to correct the issues.
"Accessible web sites are the wave of the future and the right thing to do. We applaud these companies for taking responsible and proper steps to make their web sites accessible to the blind and visually impaired," said Spitzer. "We urge all companies who have not done so to follow their lead."
Spitzer's comments suggest that he believes all commercial web sites should comply with the ADA, not just those that support physical "public accommodations". It seems to follow that "brochureware" sites would need to be accessible, as is required in the UK.
However, Spitzer's investigations focused on making Priceline.com and Ramada.com "accessible to the assistive technology used by the blind and visually impaired". He made no mention of making the sites accessible to other disabled groups, such as those with cognitive or mobility problems.
Advocates for the visually impaired applauded the settlements.
"By implementing design standards that allow screen reader software and other assistive technology to function effectively with interactive web sites, companies will make tremendous strides in closing the 'digital divide' for visually impaired users," said Carl Augusto, president and CEO of the American Foundation for the Blind.
"As the internet continues to become an increasingly important tool for business, commerce, and leisure activities, it is imperative that all companies ensure their web sites are accessible for all users – including people who are blind or have low vision," he added.
Struan Robertson, editor of OUT-LAW.COM and an IT lawyer with Masons, commented:
"In the UK, awareness of the legal obligation for web accessibility has only really taken hold in the last 12 months, albeit the obligation has existed for much longer. Spitzer's settlements are likely to trigger a similar rise in awareness in the US, particularly since neither Priceline.com nor Ramada.com is based in New York.
"The problem is that the US obligation is still unclear. While the settlement is great news for visually impaired internet users, US businesses will want clarification of their legal duty: to whom does the obligation apply and how far does it go?"