Who is responsible for accessibility?

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In the article "The advantages of E-Learning", Martin Sloan says "Institutions also have to remember that the duty is on the responsible body not the individual. In the case of the higher and further education sector, this is generally the governing body of the institution."

But what about the provider?

I seem to remember in Maguire V SOCOG, there was an argument between SOCOG and IBM about who's fault it was that the olympic site was inaccessible. IBM said "You never asked us to make it accessible" and SOCOG said "But you should have known that, you're the experts". I'm paraphrasing of course and I can't find the reference now. I also don't know how that argument was resolved. Anyone remember?

But in general, could a provider, such as a consultancy, be held responsible for what they provide being legal?

I just read in Federal Computer Week that US government agency procurement officials have devised a number of ploys to shift the responsibility of section 508 compliance to product vendors. This includes requiring vendors to "certify" their products' compliance with Section 508 and requiring contractors to submit to mandatory third-party testing as a condition for bidding on government contracts. The article claims that this violates the letter and spirit of the section 508 legislation and that it should be up to the agency to ensure compliance. The long URL is as follows:

http://www.fcw.com/fcw/articles/2002/0318/pol-davis-03-18-02.asp

What is the legal position on this? Could I, as a website developer, be held responsible if one of my clients was successfully sued for the website being inaccessible? Or is this purely a matter of whether accessibility was stipulated in the contract between me and my client?

-- Anonymous, March 21, 2002

Answers

To answer this question I would refer to my earlier paper 'Web Accessibility and the DDA' (Journal of Information Law and Technology 2001(2)mat http://elj.warwick.ac.uk/jilt/01-2/sloan.html), as I believe there would be no difference between Part III and Part IV of the DDA on this issue. This is covered in Chapter 4 'Remedies Under the Act and Negligence'.

In my opinion, there would be no liablility for a developer under the Act as such, if he was contracted to provide the site. In much the same way as the builder of a supermarket does not have a direct duty towards shoppers under the Act - this duty falls on the supermarket operator.

However, if a service provider (or in this case a University) was found to have breached its duty, that service provider may have a remedy against the developer for any losses that it suffered as a result of losing the initial action.

For example, Bloggs plc a large and highly successful conglomerate, with a huge amount of customer goodwill and brand loyalty sells Widgets using it's Web site 'widgetsrus.com'. This web site was designed for Bloggs plc in June 2001 by a web design firm called Dotcom solutions. However, as a result of this site's accessibility problems, Bloggs plc is sued under the DDA in October 2001 by a visually impaired person called Mr Smith for failing to make reasonable adjustments under the Act. In this landmark test case, the court holds that Bloggs plc did have a duty to provide an accessible web site under the law. The court not only orders Bloggs plc to fix its site, but also to pay Mr Smith 20,000 in damages for hurt and loss of feeling, as a result of this discrimination. Because this was a test case, it is picked up by several tabloid newspapers who plaster their frontpages with headlines saying 'Heartless Bloggs plc Wrecks Disabled Persons' Lives' etc. As a result of this, Bloggs' goodwill and loyalty is damaged and its share price falls.

Now, whilst Dotcom Solutions were not involved in the initial action (they were not the service provider), it may be perfectly reasonable for Bloggs plc to sue them for negligence and/or breach of contract on the grounds that the website supplied was not of a satisfactory quality and was not the standard to be expected of a reasonable Web Designer taking reasonable care to provide a product of satisfactory quality. If the court was to decide that Dotcom Solutions had indeed been negligent then they may well award damages that covered all of Bloggs' losses (ie the cost of fixing the site, the cost of paying out the 20,000 damages and compensation for the loss in the value to goodwill).

Of course, all of this depends on what the contract between the Web site developer and the commissioning body (whoever they be) says - it may be possible to contract out of such liabilities. However, I would have thought that the prudent service provider would make sure that he would be able to recover any losses from the Web site developer as a results of losses he might incur due to problems with the Web site.

Of course, Web site developers who are aware of this potential problem will likely be ones who will already be making the sites they design accessible, so they have nothing to worry about.

In general, much will depend on the individual circumstances of each case. I would have thought that the reasonable Web site developer would know about accessiblity and if a client insisted they wanted everything done using Flash then they should point out the potential legal implications and get a written agreement that the developer would not be liable for any losses.

As the technical experts, it is for the Web developer to be aware and point out the problems - an onerous duty on them. Otherwise they would probably find a negligence action pretty much indispensible, due to there being an implied terms of qaulity etc in the contract (again see Chapter 4 of my JILT paper). Afterall, that is why the the service provider has hired their services in the first place.

-- Anonymous, March 23, 2002


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