October sees the main provisions of the Equality Act 2010 coming into force, in a move to update the anti-discrimination laws protecting individuals with disabilities and their rights to access online material. The changes will place further obligations on website owners and hosts to ensure sites are accessible and compliant.
Under the Disability Discrimination Act 1995, which is being replaced by the Equality Act, website owners were obliged to make a site accessible to disabled users and make reasonable adjustments to resolve any access issues. This requirement remains in the new Act, but the threshold has been lowered. In the future, a person with disabilities must not be put at a "substantial disadvantage", compared to a non-disabled user. Previously, it had to be "impossible or unreasonably difficult" for a disabled user to use a service. The lower threshold means that the obligation to make reasonable adjustments is now more onerous on website owners and hosts.
Public authorities will face a more onerous duty to "eliminate discrimination", "advance equality of opportunity" and "foster good relations between those protected by the Act and others". Consultation is currently being undertaken but the likely outcome is the introduction of higher standards of web accessibility.
So what are the implications for website owners failing to comply with the new Act? As before, the potential penalties could be that a site owner would have to pay damages, as well as having to alter website accessibility and content. However, the new Act goes further and web hosts could also now be in breach of the Act, where the host has any knowledge that a website does not comply with the accessibility requirements. As a result, there is a greater risk that sites will be taken offline, until any accessibility concerns have been resolved.
To assist website owners, the final version of The British Standards Institution's BS8878 (Building Accessible Experiences for Disabled People) will be published in November 2010 and sets out how website owners should identify and remove barriers that result in websites excluding disabled users. The Standard is aimed at parties commissioning a website or improving an existing site and offers guidance on all stages of the project. Although not legally binding, compliance will be helpful evidence in the event of a legal challenge.
The Standard recommends involving individuals with disabilities in the development process. Some examples of recommended tools to be included in a website include the ability to change text font/colour/size or providing text equivalent of an image which can then become synthesised speech. To accommodate a range of platforms, organisations should consider how easily disabled users can access sites on devices, such as mobile phones and televisions.
When BSI Standard BS8878 is published later this year, website owners should carry out a review of the accessibility of their websites and seek appropriate advice where they may have any concerns regarding compliance with the new Act.
Sandra Dalziel is a senior solicitor in the Intellectual Property & Technology team of Maclay Murray & Spens LLP