IP, Technology & Data

The One Voice for Accessible ICT Coalition has published a report warning that elderly and disabled users are at risk of digital exclusion if mobile apps are not developed with accessibility in mind. The One Voice for Accessible ICT Coalition’s members include accessibility charity Abilitynet, BT, the UK technology trade association Intellect, Lloyds Banking Group and City University London.

The findings of the report are not surprising, and are reminiscent of similar warnings many years ago when web 1.0 was taking off, and traditional websites contained many accessibility problems. However, given the exponential growth in the use of smartphones (particularly as a low cost alternative to getting online) and the increasing reliance upon delivering services online, the warning is perhaps even more concerning this time around.

Seven steps to accessibility
To help mitigate these potential problems, the Coalition advocates that app developers follow their Seven Steps to Accessibility.

The seven steps are largely common sense, but should help organisations to ensure that accessibility of their apps is factored in at an early stage, particularly when combined with guidance such as BS8878.

What does the law say?
The relevant law here is the Equality Act 2010, which obliges service providers not to discriminate against people with disabilities by reason of their disability. It also contains (more limited) obligations not discriminate on the grounds of age.

The obligations include a duty not to indirectly discriminate against people on the grounds of age or disability, a duty not to discriminate on the terms of service, and an obligation to make reasonable adjustments. You can read more about these duties in this blogpost.

These duties have interesting implications for evolving areas such as mobile apps, where accessibility technologies and standards are still immature, and are often dependant upon the hardware and software accessibility features built in to the mobile device by the device manufacturer.

What if a service provider offers a service through a conventional website, which is accessible to all users, but wishes to provide a better mobile solution using a bespoke mobile app? Does the Equality Act work in such a way as to hinder innovation for the wider world by preventing a service provider from launching a mobile app if that app is not accessible to users with disabilities?

This is something that Jonathan Hassell and I chewed over on World Usability Day last year. Ultimately, each case will depend on its facts but the answer to the question is, I think, no.

Proportionate means to achieve a legitimate aim
The duty not to indirectly discriminate against disabled or elderly users applies where:

A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

However the duty is only infringed where the service provider cannot show that the provision, criterion or practice is “a proportionate means of achieving a legitimate aim”.

In this case, the service provider’s aim is to improve the ways in which its customers can access its services on the move and when using mobile devices (the “legitimate aim”), and provided that the service provider has given reasonable cognisance to any accessibility measures that are available when designing the mobile app, it is likely that its actions are proportionate.

This is particularly so where the app is only made available on certain platforms, and where elderly or disabled users can already access the service through other channels such as the conventional website or by telephone.

So the fact that an app cannot be made accessible to a specific group of users should not stop the service provider from making it available to the wider public.

Reasonable adjustments
Whilst an initial mobile app may not be accessible to disabled users, service providers do have a duty, under the reasonable adjustments obligation, to continue to review the means through which they provide services and consider whether any adjustments can be made which will improve the accessibility to users with disabilities (this obligation does not apply to potential age discrimination).

This is an evolving duty, and so requires service providers to take advantage of new technologies and techniques – for example, new hardware or operating system features, and new W3C standards.

As with conventional websites, service providers should therefore ensure that accessibility improvements are continually reviewed as further versions of the app are developed.

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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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