IP, Technology & Data

Deep down in a recent white paper launch by European Commissioner for Information Society and Media, Viviane Reding, the Commissioner gave an indication of the Commission’s plans in respect of the accessibility of websites.

In the UK, the main legislation in this area is the Disability Discrimination Act 1995 (as amended) (DDA). In summary, the DDA places a general obligation on organisations not to discriminate when providing services. The DDA doesn’t specifically mention websites, but then the Web was barely a twinkle in Tim Berners-Lee’s eye when the bill that became the DDA was being discussed by parliament. That said, the flexible, principles-based approach of the DDA has proved relatively successful and adaptable, and there is a reasonably common consensus that the DDA imposes a general duty on the operators of websites to make those websites accessible to people with disabilities. For a deeper discussion on web accessibility and the DDA, see this paper.

To date, European-derived law has been limited, and its impact in the UK even more so. Yes, there are some European rules on equal treatment, but the main impact on accessibility has been on public procurement. Here, the current (EU-wide) rules governing procurement by public sector organisations require the procuring organisation to specify its requirements in relation to accessibility and design-for-all when developing its technical specification. However, the Commission has not yet flexed its muscles in relation to the private sector.

So what of the latest announcement? Well, we’ve seen this before. Back in 2006 the Commission announced European-wide accessibility rules but in the small print it became clear that the “rules” were in fact an action plan, and that its scope related only to the public sector (see previous paragraph).

This time, however, there is talk of encouraging all member states to embrace and endorse version 2.0 of the W3C‘s web content accessibility guidelines (WCAG) – a set of technical standards developed by technical experts. From a UK point of view, this is unlikely to lead to a seismic change – the British Standards Institute’s PAS 78 and the draft British Standard for web accessibility (BS 8878) both make reference to the WCAG, and I would expect a court to look to these documents when determining appropriate practice (particularly given that their development was sponsored by the Disability Rights Commission and its successor, the Commission for Equality and Human Rights). So far so good, then.

However, the most interesting part of the speech was how Commissioner Reding thought that the WCAG should be embraced by member states:

I believe the way we should do this is to develop together with stakeholders a European Disability Act.

Quite what form a “European Disability Act” will take remains to be seen. Will it once again apply only to the public sector or will it also apply to private sector organisations? What else will it say? Will it undermine the principles-based approach of the DDA?

One must assume that this will be implemented by way of a new Directive or Regulations. That being the case, I hope that those new rules are carefully drafted. One of the great benefits of the DDA is that (unlike equivalent, overly prescriptive, legislation in the US), its generic and flexible nature means that it can be easily adapted to changing technology. Hardcoding the WCAG 2.0 and other Web-specific rules into European law might be good on one level (in that it will force the introduction of some form of web accessibility requirement under national law), but I fear that further down the line this will cause service providers and courts to tie themselves in knots as they try to interpret and apply law that, quite frankly, can’t keep up with evolving technology.

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Martin Sloan

Partner at Brodies LLP
Martin is a partner in Brodies Technology, Information and Outsourcing group and has wide experience of advising clients on technology procurement and IT and business process outsourcing projects. Martin also advises on data protection (including the GDPR), and general technology and intellectual property law, and has a particular interest in the laws applying to social media and new technology such as mobile apps, contactless/mobile payments, and smart metering.
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