By Majeed Saleh and Dan Jellinek
For years the web accessibility community has been waiting for clear legal precedent to be set enforcing the accessibility of websites for people with disabilities, but to date the wait has gone largely unrewarded.
The ruling cited most often dates back to 2000, when blind web user Bruce Maguire won 20,000 Australian Dollars from the organisers of the Sydney Olympics for failing to address the inaccessibility of the games’ website (for case details see contenu.nu/socog.html and E-Access Bulletin back issues including August 2008). But the ruling was that of an equal opportunity commission rather than a full court, and has little resonance outside that country.
Since then, a series of cases brought in the UK and elsewhere have been settled out of court with payments made to plaintiffs, often in secret. Such settlements are frustrating: for while it is understandable that complainants, many of whom are people with disabilities, are inclined to accept offers of financial compensation in return for dropping their claims, only completed court cases can set a legal precedent.
On the other hand, if the settlement is large enough, and is made public, then even if it comes with a disclaimer of liability, other website owners may sit up and take notice: no-one wants to have to make large payouts.
Enter Bruce Sexton, a blind student from the University of California Berkeley. In 2006, when Sexton was aged just 24, he brought a class action over website inaccessibility against the American superstore chain Target, with the support of the National Federation of the Blind (NFB – www.nfb.org).
Sexton, with the NFB and joined by two other individuals, Melissa Williamson and James Marks, filed a case centred on the inaccessibility of the Target website to visually impaired screenreader users (www.nfbtargetlawsuit.com).
Target runs more than 1,500 stores in the US, and its online store (www.target.com) receives around 25 million unique visitors a month, according to figures from compete.com. The plaintiffs alleged “systemic civil rights violations” by Target. They told the United States District Court, San Francisco Division, that “Target.com provides to the public a wide array of the goods, services, price discounts, employment opportunities and other programs offered by Target. Yet, Target.com contains thousands of access barriers that make it difficult if not impossible for blind customers to use the website.
“In fact, the access barriers make it literally impossible for blind users to even complete a transaction on the website. Target thus excludes the blind from full and equal participation in the growing Internet economy that is increasingly a fundamental part of the common market place and daily life.”
After two years of wrangling, Target has finally agreed, in a settlement announced on 27 August, to pay the plaintiffs 6 million dollars plus legal fees. The company also agreed to make changes to their site to ensure it is accessible (fastlink.headstar.com/target1).
It is true that Target does not admit to liability, or accept that it was breaking the law or even that its website was inaccessible. On the other hand, the size of the payment is enough in itself to send shivers down the spine of anyone offering large-scale services online.
Struan Robertson, Legal director at solicitors Pinsent Masons, told E-Access Bulletin that the ruling would have the strongest influence in California, meaning any website selling to customers in that state would have to make accessibility a real consideration. That influence, however, does not extend to other parts of the US, so much uncertainty remains.
“If it encourages other sites to improve accessibility then it’s a good thing, and it’s encouraging that the comments of the judge were supportive of the need for accessibility,” Robertson says.
Peter Abrahams, expert on accessibility and usability at technology research consultancy Bloor, says companies faced with the possibility of a similar lawsuit are likely to look at the settlement and decide that it may make more sense for them to make the necessary changes to their websites now. “I would be surprised if people go to court again,” he says.
Interestingly the standards of accessibility to which Target is bound to comply are not the most widely recognised ones such as the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG), but standards developed by Target themselves. These ‘Target Online Assistive Technology Guidelines’ (fastlink.headstar.com/target2) contain similar guidance as other accessibility standards such as the requirement to use alternative text for images, but make no reference to WCAG or any other generally accepted standards.
Abrahams told the E-Access Bulletin that this was not necessarily a problem. WCAG standards are highly technical, he said, and the Target standards are written in a way that people working at the company will understand and can implement. “It’s a good document, a good example of what people should do,” says Abrahams. “People should take advantage of the fact that it this document is now publicly available.”
As part of the agreement, the NFB will perform quarterly automated tests on the Target website to ensure it is meeting its obligations. Every year an accessibility consultant will perform a detailed examination of the site and the NFB will conduct user tests with the JAWS screenreader, reporting the findings to Target. All this testing will be paid for by Target.
So from where might the next court action come?
Interestingly, the technology behind Target’s website is provided by Amazon Enterprise Solutions (www.amazonservices.com/amazoncommerce), An offshoot of the online retailer Amazon which provides e-commerce solutions to various other companies including Sears Canada (www.sears.ca), Marks and Spencer (www.marksandspencer.com) and Mothercare (www.mothercare.com).
Could these other sites be vulnerable? Not necessarily. In March 2007, Amazon.com and the NFB signed an agreement which would see them “work together to develop and promote technologies that improve web accessibility for the blind.” This agreement however covers the website Amazon.com, and not explicitly the technology that Amazon provides to other e-commerce sites (fastlink.headstar.com/nfb1).
Only time will tell if other cases will be brought and settlements reached. But the incentive is there: six million dollars is an attractive carrot for potential plaintiffs, and a big stick for potential defendants.