Joe Dolson: Accessible Web Design

For a major issue in accessibility, I have to say that this really hasn’t seen much press. Granted, major lawsuits tend to move slowly — - glacially, you might say. However, given the fact that the last announcement concerning the National Federation of the Blind v. Target Corporation lawsuit was in September of 2006, you’d expect some kind of blog coverage on the latest announcement.

In fact, I found it difficult to find anything about it at all, at first — - I only became aware of it because I was talking to a web development manager from Target. (Articles are now easy to find via Google News.)

At any rate, the major news is that the lawsuit has been granted federal class-action status.

Granting class-action status allows blind people throughout the country who have tried to access Target.com to become plaintiffs in the suit, which alleges violations of the Americans With Disabilities Act. Associated Press

Further, the Judge (Marilyn Patel) ruled that changes in Target’s web site since the date of filing do not provide grounds for dismissal of the suit.

Judge Patel’s order Friday noted that Target has modified its Web site some since the suit’s filing to make the site more accessible to the blind. Target claimed the suit should therefore be dismissed, but Judge Patel ruled against that argument. Associated Press

Turning the suit into a class action may place additional pressure on businesses to start considering web accessibility a priority. One can hope, at any rate!

See also: Update: Target ruling may force retailers to adjust Web sites (Computer World)

My new article at Matt Bailey’s Accessibility Blog: Web Accessibility and International Law, looking at the issues raised concerning liability of companies concerning the use of their websites outside their geographical jurisdictions.

The post talks about the issues raised in the article “Computer-based exam discriminated against blind candidate” at Out-Law.com.

Hat tip to Kim Krause Berg, who is in turn tipping her own hat to Rosie Sherry. Article at The Register.

Although it’s interesting to see another lawsuit on the inaccessibility of a software product, this suit is fundamentally different from the Target lawsuit currently in process. That lawsuit, dealing with a commercial website’s accessibility level to the general public, has the potential to set a landmark precedent for website accessibility. No United States law currently explicitly states that a commercial website must provide any level of accessibility. This lawsuit could potentially provide a precedent which would interpret existing law as having this requirement.

This Oracle lawsuit, however, involves software which is a) not a website and b) was purchased by the state of Texas for use in their state human resources department. The fact that the lawsuit is associated with a government entity makes this a very different case. Texas state law as well as Federal law clearly address the issue of accessibility of government technology: the state of Texas has extensive guidelines concerning accessibility which should be referred to when constructing web sites or other electronic or information resources:

House Bill 2819, 79th Regular Legislative Session

State agencies must ensure that state employees and members of the public with disabilities have the same access to electronic and information resources as state employees and members of the public without disabilities, unless providing that access would impose a significant difficulty or expense on the agency.

The provision of a necessary piece of work software which does not meet these standards is a direct contradiction of Texas state law. This lawsuit will not have the same impact, legally, that the Target case has.

That’s not to say that it’s insignificant, however. It will help bring issues of accessibility to a greater awareness, as well as encouraging a large software company to make accessibility a greater consideration for their own products. It may not result in a major new interpretation of law, but should certainly result in better software for the human resources department of the state of Texas.

Courtesy of Kim Krause Berg, a great summary of accessibility policies by country.

A big deal is frequently made of Section 508, the United States accessibility guidelines, WCAG 1.0, and the accessibility rules set by the UK: The Disability Discrimination Act. But what if your primary audience is in Belgium?

Even though very, very few countries currently provide laws requiring accessibility for privately owned commercial sites, it’s always a possibility that this could happen: it’s a good idea to keep your eyes on the regulations currently applicable in any given country.

Better, of course, is to just make your site as accessible as you reasonably can and figure that whatever legal changes occur you should be in the clear &mdash at the worst, you’ll fail their stringent requirements but have clearly demonstrated your efforts!

Although I’m an enthusiastic supporter of the principles of accessibility, the practical definition is challenging to really pin down. Given the widely criticized WCAG 2.0 and the sometimes questionable expectations of Section 508 accessibility guidelines, I’m have to wonder whether a legal accessibility requirement is really practical.

The problem is, to a degree, in the fact that in order to enforceable, the law would have to be very precise about what constitutes "web accessibility". Since experienced web developers can hardly even bring themselves to agree on the subtler details of the subject, it seems possible (and even probable) that a government prepared definition of accessibility would be severely lacking.

Read more: Is Legally Mandated Accessibility a Benefit?

From 456 Berea Street, Roger Johansson makes note of a EU declaration to "ensure that all public websites are accessible by 2010". This ministerial commitment is in fact quite broad in scope, including commitments to accessibility in the sense of access to an internet connection.

The official press release states:

Many Europeans still get too little benefit from information and communication technologies, and millions are at risk of being left behind. Enabling all Europeans to participate on equal terms in the information society is not only a social necessity – it is a huge economic opportunity for industry.

They also intend to increase the availability of broadband coverage to at least 90% in Europe by 2010. This doesn’t require any change to the current urban infrastructure, but would require the expansion of the rural infrastructure from its current 60% coverage.

This is a powerful commitment, and certainly raises hopes for the future of web accessibility.

The Washington Examiner, a local paper published in Washington DC and nearby areas, published an editorial on February 20th suggesting that legal enforcement of accessibility requirements for web sites may not be constitutional under the first amendment.

The editorial quotes an unnamed Supreme Court decision:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press.

Although the editorial does not name the decision, it is a particular citation which has appeared frequently in the news lately in relation to the prophet Muhammad cartoon riots. The case, Miami Publishing Company v. Tornillo (1974), is concerned with a Florida law "which provides that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges."

The law was ruled unconstitutional on the grounds that no law may either require the publication of material or deny the right to publish it, as either action is an infringement on the editorial right of the publication to choose what it will say.

The majority opinion of the court discusses changes in publication media extensively. The statement is too lengthy to quote here, but I will attempt to summarize. Justice Burger discusses the culture of ideas as a free-market which had existed through the variety of news publishing which existed at the compilation of the Bill of Rights. He noticed that the consolidation of media which had occurred by 1974 has had a singular effect on this culture, creating a homogeneity which has created a culture prone to bias and manipulation by those few individuals at the controls.

From this premise it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the "marketplace of ideas" is today a monopoly controlled by the owners of the market….

The opinion continues to condemn any governmental action which would control the media since press responsibility is not a part of the constitution and can not be legislated.

Does this opinion exhibit evidence that it stands as a barrier to any potential accessibility law? Yes, absolutely. It is quite clear that this opinion has considered relevant issues. The opinion explicitly states that the government has no right to legislate access to information.

Nonetheless, the world has changed, and continues to change. It all comes down to constitutional interpretation. This 1974 decision does not address issues of accessibility as it regards the disabled. This issue may be of significance. Can the disabled be denied equal rights to physically abled people? No, of course not. But the failure to grant them legislated rights is not equivalent to a denial of equal rights. Under the Ninth Amendment, the enumeration of rights may not be construed to represent the denial of other rights.

As it stands, there are valid arguments that the First Amendment could abrogate any obligation of web site owners to provide accessibility. The US constitution could be interpreted to allow owners to make the decision that their information will not be accessible to disabled users.

It’ll be interesting to see what happens.