I was chatting with Ryan Carson today via email (Moi? A name-dropper?) about a letter I’d written to .net ranting about calmly debating accessibility and how to test it. The letter and its contents are unimportant in this context but the email conversation with Ryan sparked of a train of thought about legal responsibility for accessibility. Its something that I’ve never thought to question until now and a quick peruse of accessify.com revealed no answers.
So who’s legally responsible for accessibility? In this country we have the DDA (Disability Discrimination Act) which is supposed to be the act that governs web accessibility. In that I can only find one fairly woolly statement:
…service providers have had to consider making reasonable adjustments to the way they deliver their services so that disabled people can use them.
DDA.
So lets say Client X employs Designer Y to build him a website. Lets further say that Client X doesn’t explicitly request an _accessible_ website – why would he? He probably has no idea that a law such as this is in effect or covers websites. So Designer Y builds the site, Client X loves it and 2 months down the line User Z can’t place an order because the shopping cart isn’t accessible. User Z is pretty pissed off about this and feels (with some legitimacy) that hes been denied a provision of goods that a non-disabled user can access. He decides to sue.
Who does he sue? Is it Client X’s responsibility as he’s the person who should’ve a) checked the law before commissioning the project and b) provided an accessible website to User Z? Or should User Z sue Designer Y as he’s the guy who actually built the site and really should’ve been professional enough to ensure it was accessible? Maybe User Z will sue Client X who will then turn round and sue Designer Y. But, if Client X signed off the project, isn’t that his problem and not Designer Y’s?
Questions, questions, questions…whats your thoughts international design community?
Left Brain Right Brain 
Im not exactly the international design community, more Kidderminster’s Del Boy – but I would say its the both the clients and designers responsibility, in an ideal world the designer should always discuss the options with the clients, and regardless of whether the client asked or not strive to design a website which is semanticly coded and coded to validation standards, which in turn makes it accessible to an extent.
Clients should also, in an ideal work provide the information on the audience, and possible difficulties they forsee.
Since I went to the RNIB center in Worcester with my Mum (who works with parents whos kids have just be diagnosed as visually impaired, either from birth or developed condtions) it really opened a new world, not all are 100% blind, and I got a range of them to test out the mattian site, which is nothing special, and hasnt been optimised and doesnt even validate, but they could still use it, they did make clear a few things which were issues though.
What this proved to me was that classing something as accessible, and something as not is a fine line, but that the best way to gauage a users interaction with a site is to get them to test it, the designer may not have this opportunity, in fact its very unlikely for them to have this opportunity, and until designers demand the info from their clients, or clients demand that their designers do some research into how people, with a disability or not, interact with that site in particular, its very hard to blame someone – as at the end of the day they are both responisble.
Kev – Accessibility is not legally required on all British websites yet. There is a document (somewhere?) made public last year that specified that all UK government and local authority websites had to conform to strict accessibility issues by the end of 2004 – but I have seen little evidence of this being enforced by anyone! There is a similar requirement (of sorts in the U.S.)…Section 508 is an accessibility standard that you might have seen branded about on the Web. And in this instance – Section 508 only applies to U.S. websites…and even then, only to ones ‘funded’ by federal income!
All this suggests that Accessibiliy is not being considered a priority by the government in the UK (or anywhere else) – and there should be a stronger lobby for it within the web community to force the issue.
So if anyone sues about accessibility right now – then they’d have very little solid ground to tread on….err, so to speak!
In your example, User Z’s order failed to be submitted (so he hasn’t parted with any money, or been deceived). He can certainly try to sue Client X (who then might point at Designer Y!)…but the key issue is that neither Designer Y or Client X have to make their site conform to accessibility requirements (for UK websites)….yet.
User Z should address the problem with Client X – who will then ask Designer Y ‘what the hell is going on?’ Designer Y will then load up on coffee and other stimulants until he has cured the fault. Client X will offer User Z some form or discount or credit as an apology, and express many, many times over how they have a site that IS accessible for users! User Z won’t be any further problem, and no one gets sued!
In truth though…all websites (especially E-commerce) should be designed to meet web accessibiliy guidelines. Client X shouldn’t need to specify them as they are probably not technically aware of them. It wouldn’t hurt if Designer Y also mentions this to Client X in passing, as the site is being developed…sort of as a ‘hey, I’m also doing this because….’ type of statement – so it looks like a benefit!
🙂
Hi Kev,
IMHO the onus has to be on the developer.
Bare with me a mo won’t you.
Last year we had our windows replaced and very nice they are to. We currently have our house on the market for sale and have just found out that our (super duper double glazed keep the droughts out/heat in) replacement windows should have been to new Building Regulations requiring that certain standards are adhered. I didn’t now this, why/how would I. Surely the company who installed the windows should have informed me of this fact, if not legally but at least morally.
If we, as designers developers are aware of such laws regarding website accessibility, it’s our responsibility to offer the option which legally isn’t really an option so to speak but a requirement.
What we really need I guess is some sort of website MOT certificate type affair.
Love the spell check BTW, couldunt get it working myself.
Graham: Good analogy – your windows! 🙂
Unfortunately it’s not a legal requirement for all websites to meet accessibility issues yet…and I strongly agree that something similar to a ‘website MOT for Accessibility’ is needed…and soon.
(Which reminds me, I need to get my car MOT’d – nuts!)
Matt (R not S ;o) ): Interesting take on it. I personally think websites _are_ covered by the DDA – here’s a couple of clauses:
2.13 – 2.17 (p11-13): What services are affected by the Disability Discrimination Act? An airline company provides a flight reservation and booking service to the public on its website. This is a provision of a service and is subject to the act.
5.23 (p71): For people with visual impairments, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include … accessible websites.
5.26 (p68): For people with hearing disabilities, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include … accessible websites.
Source.
I also think that its the alleged denial of service which is the important thing in the eyes of the DDA, not so much if payment was made. I do totally agree though that the Gvmt aren’t (or don’t seem) too concerned with providing clarification and I think Graham’s MOT idea is a very good one.
My own personal feeling is that it would be the client who could be sued by the user but that the client would then counter sue the designer. As with most aspects of UK law, the people who would really benefit from all this would be lawyers!
Graham: You might need to ask your host if they have Aspell installed.
Bloody lawyers! # Laughs #
I find .net intolerable and half baked. I feel like I’m being treated like a moron as I read it. They try to promote web standards and CSS in their mag but yet the website sucks serious ass.
Back on point, it’s Client X’s fault. If you employ shoddy workmen who do a “lick o paint, lick of paint” job then then the Client should at least know what there suppose to be doing.
Unless the Client has said to Designer, “You must make this accessible” then its boo hoo. Yea the Designer should have done it better in the first place and yes you probably could take him to court.
“What we really need I guess is some sort of website MOT certificate type affair.”
Graham, great point but the web is so infantile that it wouldn’t ever really be agreed upon. There are many people that say the 508 tests are incorrect, so what chance do we have? Even if we did have a 50 point check to what degree of accuracy could it be completed, if you did the work but then the client made an error and missed out some quotes would you fail the test? What about if I added features the enhance some browsers but crash others?
Accessibility is so subjective, so if we are going to do tests and certificates we need some serious people like Joe Clark to write this stuff and get everyone to follow on.
Kev, that was the only reason it wouldn’t work, I discovered this just before I was never going to switch my computer on again 🙂
As a newbie type chap, I find it quite frustrating when validating a site, Cynthia says yes but Bobby says no chance, who’s right, who knows, who should I be validating my site with?
At the end of the day, I personally feel inadequate, cheap and dirty (maybe not the last two) if a site doesn’t validate in all and sundry and it gets to the point where I have to say, that’ll do, or I’ll lose my mind. I/We need some direction as to what guidelines make a site accessible and IMHO there should be one governing body that, not necessarily polices this, but gives developers the opportunity to validate there site to said standards.
I love this spell check, any chance of a Thesaurus?
I think the best thing to do in terms of accessibility validation is to forget about the auto-validators. There’s no real way a tool can auto-validate a site totally anyway as some checks are too subjective. What I do is check against the WCAG1.0 Checklist. Its amazing how quickly you get used to doing this manually and it certainly helps retain knowledge when it comes to building in the accessibility markup next time you do a page.
I used to do the same as you Graham and fret endlessly over comparative results from a whole range of auto-validators (this was the gist of my letter to .net by the way) until a mate clued me in as to why it was a fruitless exercise.
It’s Client X’s responsibility. Fair and square… if they didn’t specify accessibility as part of the process, then that’s their lookout. They’ll have to cough up to get the site made accessible. Ignorance of the law is no excuse.
It’s like asking a carpenter to build you a table and not specifying the wood you want it made out of. You can’t then blame the carpenter if he makes it out of chipboard and you wanted teak.
…and Matt Robin is incorrect. It *is* law that reasonable adjustments must be made to sites to ensure that they are accessible to all, and has been since October 1999, just like reasonable adjustments msut be made to buildings as of October 2004.
I agree with you about the legal standpoint Diva (thats two Diva’s I know now!)
Not sure about the issue of responsibility though. I mean as far as a court action would go then yes, it’d definitely be the clients fault but I really thin that the client would have a good case against the designer – shouldn’t the designer be responsible for building a site properly? Do we charge extra to make it right?
Hmmmm.
It’s the service provider that’s liable under the DDA. However if they have to pay compensation they will probably try to get compensation off you in return. Depends what, if any contract you have, if you have liability/indemnity insurance etc.
The issue of the contract I’d forgotten about. Maybe making a site accessible is an implied responsibility of the designer but if it isn’t mentioned in the contract explicitly then what? I’d still argue that the designer has left themselves open to action.
Trouble is this is all so ambiguous. Even _meeting_ the law is ambiguous – internal Gvmt papers tell their own designers to make sites ‘A’ compliant, local Gvmt tell _their_ designers to go for ‘AA’. And no where does there seem to be an official position.
I come form an engineering background, and we’ve covered things like this before. It falls on the educated (that is the web developer) to ensure that the audience understands the requirements under law.
Consider it another way. An engineer is called in to build a bridge. It is *assumed* by the company calling said engineer in that the legal requirements will be met – they don’t need to know them explicitly, but there is an assumption that the informed person (engineer) is accountable for meeting the requirements. Hence while it is perfectly acceptable for user Z to sue company Y, it is also required that a second suit be put against user X for not abiding by the legal requirements.
The engineers analogy is the best I can show to people.
I think thats a great analogy Joel. Its certainly the ‘safest’ (in terms of avoiding litigation) action I can think of for all involved.
Cheers kev.
Yeah – once we covered that in one of our courses it made a heap of sense. It is not for the client to be up to date with all the legal requirements under the building code, electricity code, air conditioning code etc – that’s why they bring in the third party (ie engineer/engineering firm). The same system should be applied to web development, and is something that I have been saying about for quite some time.
“Recently in Australia the Blind Society brought legal action over Government websites”:http://euphemize.net/archives/20050306/and-so-it-begins/ (sorry but the article was not available online so I had to retype it). It is only this threat (and follow through of) legal action that will force unscrupulous web developers to tighten up their act. Something that may *have* to occur in addition is the bringing in of some form of competency requirements through an organisation (W3C would be great, but with so much on their plate and off-shoot may be ultimately required).
pixeldiva: “…and Matt Robin is incorrect. It is law that reasonable adjustments must be made to sites to ensure that they are accessible to all, and has been since October 1999, just like reasonable adjustments msut be made to buildings as of October 2004.”
Is the U.S….this is true – but not under UK law, and that’s what I meant and am completely correct about, thanks.
Actually – I AM wrong!
(Partially wrong)…the DDA source (as pointed to earlier by Kev) does indeed declare the accessibility law pixeldiva refers to, and I openly apologise to Pixeldiva for my previous remark.
Why do I suggest I am ‘partially’ wrong? Because even though the law exists – it really isn’t being implemented or enforced across numerous (UK) web sites that fail to meet accessibility standards – and I’m right about that! Why have such a law if it’s not going to be used? It doesn’t seem ‘proactive’ enough to just create laws that are only actioned upon AFTER the law has been broken!
Well actually… it has been implemented, and although there have been no cases actually gone to court in relation to web accessibility and the DDA, there have been a couple that have been settled out of court.
It’s not a governmentally enforceable law in the sense that the accessibility police are going to come and kick your door in because the resources required to enforce it would be phenomenal, but that doesn’t mean that people with disabilities aren’t complaining about it and going as far as taking action.
It’s very much in force and it’s very much in use, it’s just working to the extent that companies are choosing to make changes rather than go to court.
[Late to the party perhaps, but no matter… :)]
Well, I’ve already posted with the opinion that everyone in the process is responsible (Who’s responsible?), in much the same way as no one person/role is responsible for making a physical building meet disabled access requirements.
In terms of who gets sued… well, in the first instance, I guess whoever owns the site gets sued; just as the owner of a building gets sued if someone slips over there. Ultimate responsibility may be another question entirely; eg. major vendors may be subject to counter-claims and subsequent actions or whatever.
It’s thorny since the client probably isn’t an expert; but the law is not based on getting things morally right – it’s based on figuring out who can get sued. It’s a *legal* system, not a *justice* system 🙂 Plus – here in Australia anyway – there is a principle that “ignorance is not a defence”, whether people agree with it or not. Basically it means if you’re not aware of the law, you can still break it.