Website Accessibility and the Equality Act

The Government Equalities Office has signalled its intention to proceed with the introduction of the Equality Act 2010 according to the previously announced timetable, which means that its core provisions came into force on 1 October.

Under existing discrimination law, service providers have a duty to make their websites accessible to disabled users. Failure to do so exposes them to the risk of legal action under the Disability Discrimination Act 1995 (DDA). Where the features of a website make it impossible or unreasonably difficult for a disabled user to access a service, the service provider has a duty under the DDA to make ‘reasonable’ adjustments by way of auxiliary aids and services. What is reasonable depends on the nature of the service provided, the impact of the discrimination on a disabled person and the type of organisation and its available resources. To date, enforcement of this legal duty has not been widespread. Whilst the Royal National Institute for the Blind (RNIB) has campaigned to improve website accessibility and initiated legal action against organisations that failed to comply with the DDA, these cases were settled out of court.

The Equality Act combines the existing discrimination laws in one piece of legislation. Whether or not this will bring greater clarity to the law, and result in better enforcement of the website accessibility provisions, remains to be seen. The Act states specifically that where information is provided, the steps that it is reasonable for the service provider to take in order to avoid a disabled user being put at a substantial disadvantage include measures to ensure that the information provided is ‘in an accessible format’.

As with the DDA, where there is a failure to make a website available to disabled users, the Equality Act envisages that this will be taken up with the service provider with a view to adjustments being made that are reasonable in the particular circumstances. However, the service provider would not be required to take a step that would fundamentally alter the nature of the service or the provider’s trade or profession.

So far, so good. At schedule 25, however, the Equality Act seeks to protect from liability those hosting websites that are not user-friendly for those with a disability. In so doing, it replicates the language contained in the E-Commerce Directive, which is aimed at protecting Internet Service Providers (ISPs) from liability for libellous content or copyright infringement on an account holder’s website. An ISP will not be in breach of the Equality Act if it ‘expeditiously’ removes the information or disables access to it as soon as it has actual knowledge that it contravenes the Act. This would appear to give a complainant the power to have the plug pulled on an offending website by notifying the ISP that the information contained on the website is inaccessible to disabled users. How this will work in practice, only time will tell.