Practical Ecommerce

Web Accessibility and the Law

The state of legal requirements and protections concerning the accessibility of websites is far from uniform. Many countries have some form of web accessibility laws in place, but the extent of those laws is radically variable. Furthermore, as many websites serve multiple countries, the question of jurisdiction can become a tricky aspect of accessibility law.

It’s well beyond the scope of this article to discuss the exact limits of web accessibility law around the globe, but I do aim to discuss the ramifications and philosophies of these laws for your web-based business.

Accessibility Law in the United States

In the United States, there are no laws binding business to conform to any level of website accessibility. Many government and government-supported organizations are bound by Section 508 of the Rehabilitation Act Amendments of 1998, but these rules do not extend to private business concerns. However, even if you conduct business only in the United States, this is little reason to fail to conform to common website accessibility standards found in the WCAG 2.0.

The Americans with Disabilities Act Regulation for Title III prohibits discrimination on the basis of disability in “places of public accommodation,” covering businesses and non-profit agencies which serve the public and “commercial facilities.” This regulation is highly specific to physical places of business, and imposes strict requirements on any remodeling performed on your place of business or any new construction. While no such law exists to protect the disabled while visiting your virtual place of business online, there is a strong movement from disability advocates to create or adapt existing regulations in order to provide these protections.

The philosophy of disability protection laws is to establish equal access for individuals with disabilities to places of business, without imposing an undue burden on the business. In effect, existing laws have generous allowances for grandfathering existing problems, but require building changes to meet ADA requirements. The same is likely to be true in the creation of website accessibility laws. But defining the relation of website edits to building changes may require significant work.

Most likely, however, you don’t need to worry that the establishment of website accessibility laws will require you to immediately repair your website; although it would certainly be a good idea, in my view.

In the meantime, you do have some legitimate reasons for concern, such as the possibility of civil lawsuits. One important strategy on the part of disability advocates is the creation of a website accessibility ruling precedent. What this means is that being sued is and will continue to be a risk of implementing an inaccessible website. Despite the lack of a clearly defining law addressing website accessibility, there is plenty of room for interpretation of existing accessibility law which will affect your risk.

Consider a lawsuit brought by the National Federation of the Blind against Target Corporation in 2006. This suit was ultimately settled in 2008 without any setting of precedent and without Target Corporation admitting to liability on any point. As such, while the lawsuit did result in revisions to Target’s website and substantive damages, it did little to establish case precedent.

Because there is no single established law or regulation setting the standards for web accessibility, you can’t reference law as a stable point on which to determine when your website is safe from a possible lawsuit. Thankfully, the governing body for Internet standards, the World Wide Web Consortium (W3C), has an established set of accessibility guidelines. If compared against a legal standard such as those specified in Section 508 of the Rehabilitation Act, it’s clear that following WCAG 2.0 places you in a very safe position for accessibility. The recommendations for accessibility established by the W3C are stricter and more thorough than Section 508, but without being contradictory to the principles in the government regulation.

Accessibility Law Elsewhere

Website accessibility policies, like other laws, vary from country to country, state to state, and province to province. You should be aware of the specific laws for every country in which you do business. For most small businesses, restricting your area of business within your own country is sufficient, but even then it’s wise to be aware of the laws in different areas of that country.

The W3C provides a document with extensive links to information about international web accessibility policy. These documents can help you pinpoint the issues you may have to consider when doing business abroad.

Jurisdiction is a very important issue abroad. A good example case occurred in early 2007, when a blind systems manager was unable to complete course work and an exam provided by the Project Management Institute (PMI), a US-based not-for-profit corporation. The test taker, a U.K. resident taking her test in the U.K., brought proceedings against PMI citing the U.K. Disability Discrimination Act of 1995, which was upheld by the Disability Rights Commission. Ultimately, PMI was required to pay compensation to the test-taker.

The nature of web-based services is almost inherently international. Ecommerce is somewhat protected from international jurisdiction-based issues since it’s relatively easy to control which markets you ship sales to. But informational and virtual service businesses have major challenges in controlling their ultimate markets. Taking a close look at the accessibility of your website can save you enormously in the legal department.

What Should eCommerce Merchants Do?

Ultimately, ecommerce merchants should ensure their website is as accessible as it possibly can be. Take some time to learn about web accessibility so that you are familiar with the issues at stake before you hire a consultant to review or repair your website. But don’t neglect to protect your business because you didn’t realize your risks.

Disclaimer: This article provides information about the state of law and accessibility. The information in this article does not constitute legal advice.

Joseph C. Dolson
Joseph C. Dolson
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Comments ( 2 )

  1. karlgroves July 1, 2009 Reply

    Excellent article, and kudos to Practical E-Commerce for including this topic among its pages.

    I think the Target case deserves everyone’s close attention, because it is inevitable that there will only be more, not less, cases like it and there are many lessons to learn.

    The primary lesson to learn is to "do it right the first time". The reason is simple: While this case (like, unfortunately, so many others) does not provide any precedence because it was settled out of court, it cost Target a ton of money. First, the settlement amount was $6,000,000 plus $20,000 to setup the California Center for the Blind. Second, they had to pay their legal staff to fight the complaint for nearly 3 years. Last, the terms of the settlement call for Target to pass NFB’s Nonvisual Accessibility Certification. In other words: They had to fork over a ton of money AND still had fix their website.

    Had Target either a) made the site accessible in the first place or b) fixed the website when the complaints started coming in, they would have saved a lot of money, time, and personnel cost and would have avoided lots of negative impression of their brand.

    Many times I’ve heard people ask "Well, how many disabled users do we have on our website?" My response: "It isn’t how many, it is which one is going to sue you". Accessibility isn’t a business decision, it is a civil right, and the accessibility of your website or webstore should be treated accordingly.

  2. Joseph C. Dolson July 1, 2009 Reply

    Thanks for your comments, Karl! The Target case was a huge landmark despite not establishing any legal precedent. The enormous cost in a lawsuit, including the legal fees and time, and any settlement amount should be enough to keep you thinking about your accessibility planning.

    As you say, it’s not a question of how many disabled users are on your site; it’s a question of whether you’re going to risk your entire business just to deny somebody the right to fully use your web site.

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