IP, Technology & Data

I have previously blogged about the new Equality Act, which largely comes into force on 1 October 2010.

However, the new Act also includes a section that might worry ISPs and web hosts.

Section 206 and Schedule 25 broadly mirror the provisions that implement the e-Commerce Directive in the UK (the Electronic Commerce (EC Directive) Regulations 2002) in respect of the liability of so-called information society service providers (ie ISPs and website hosts). The effect of that wording is that hosts are not liable for breaches of the Equality Act by websites hosted on their systems, until that website is brought to their attention.

This means that if an ISP hosts a website that contains material which is discriminatory against a person on the grounds of sex, race or sexuality etc, then if that ISP fails to remove the content it could itself become liable for the content.

In other words, the “innocent dissemination” defence flies off.

To the extent that hosts already have similar obligations in respect of material that is defamatory or otherwise illegal, these obligations are not unexpected.

The sting in the tail
However, a consequence of the drafting is that these provisions may also force a hosting provider to consider complaints that third party websites hosted on its servers are inaccessible to users with disabilities. If a website is inaccessible to a disabled user, then that may cause discrimination under the Act, in which case once aware the host may be liable for that discrimination unless it “expeditiously removed the information or disabled access to it.”

In order to ensure that the host is not liable under the Equality Act for any alleged discrimination, the host may have to investigate that complaint and take down the site. But it is unlikely that the host will have the information (or resources) to be able to determine whether a site hosted on its servers discriminates against the individual in question on the basis of that individual’s disability. For one, the host won’t know through what other channels the service in question is provided.

To avoid potential liability, the only option is to suspend access to the site and tell the client to resolve the dispute with the complainant.

And another…
And it’s not just traditional website hosts that have to beware. For example, social networking sites and other sites that host user-generated content have, in my view, generally been able to argue that they are not liable under the DDA for content posted in an inaccessible format by their users, on the basis that the content is not provided by the website operator. They simply provide the infrastructure within which to post that content. It is up to the user to make sure that what he or she posts is accessible to all users.

But does the new Act allow a deaf person to contact Youtube and complain that as the content published by a commercial organisation through its Youtube channel does not contain subtitles (and is therefore inaccessible), Youtube should remove the content or be liable for it?

I’m don’t think it should (for one, Youtube’s archives would be decimated overnight), but that’s what the new law appears to say.

Will any ISP pull a site or content on the grounds of its inaccessibility, rather than risk becoming liable? That remains to be seen. But it certainly gives web accessibility campaigners a potentially powerful tool, albeit I don’t think that’s what parliament intended.

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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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