Accessibility Legal Issues

United States

The ADA

Many people in the United States reference the Americans with Disabilities Act of 1990 (ADA) as if it is the foremost rule to web accessibility. It is a broad civil rights law that prohibits discrimination against people with disabilities in employment, public entities (and public transportation), public accommodations (and commercial facilities), the use of service animals, the use of auxiliary aids, telecommunications, and other miscellaneous provisions.

The internet was just a baby internet in 1990, so the ADA has no explicit references to web accessibility. However, many web accessibility lawsuits reference the ADA due to its language around "public accommodation".

Section 508

Section 508 of the Rehabilitation Act is intended to ensure that the US federalists government takes accessibility into account when they develop, procure, maintain, or use electronic and information technology. Agencies must give employees with disabilities and members of the public access to information that is comparable to the access available to others. In other words, this bill isn't about civil rights so much as it is about procurement.

As of January 9, 2017, the Standards and Guidelines of the ICT explicitly state that federal governmental electronic content shall conform to Level A and Level AA Success Criteria of the WCAG via changes to the Section 508 laws and guidelines.

That means that if a company want federal contracts or to provide services to the federal government, it has to meet those accessibility standards. Many state and local governments, state colleges, libraries, etc. also use the Section 508 guidelines — so these potential clients would also request or require accessibility at the Section 508 levels.

While officially the ADA and Section 508 rules do not directly apply to non-federal-governmental websites or applications, there have been many web accessibility lawsuits with The Wall Street Journal reporting over 240 businesses being sued in federal court over sites inaccessible to the blind since 2015.

Microassist’s What Lawyers Should Know About Digital Accessibility, the ADA, and More covers a significant amount of US-based information about accessibility, including a timeline of landmark digital accessibility legal cases.

CVAA

In addition to the ADA and Section 508, the 21st Century Communications and Video Accessibility Act (CVAA) specifies accessibility for video communications, text messaging, web browsers on mobile devices, and other similar technologies. It states that all video programs presented with captions on television must be presented with closed-captions on the internet.

ACAA

The Air Carrier Access Act of 1986 applies specifically to air travel and requires airlines to ensure that the public-facing content of websites that they own or control conforms to WCAG Level AA. It explicitly includes seven core activities:

• Booking or changing a reservation, including all flight amenities;
• Checking in for a flight;
• Accessing a personal travel itinerary;
• Accessing the status of a flight;
• Accessing a personal frequent flyer account;
• Accessing flight schedules; and
• Accessing carrier contact information.

Interesting or impactful legal rulings

A Cautionary Tale of Inaccessibility: Target Corporation by the World Wide Web Consortium (W3C). This 2006 decision had a major impact on the Accessibility community because it successfully ruled that telling people with disabilities that they have to use a lower-feature mobile website instead of the full-featured desktop website was a violation of California law. “The [Federal] Judge found that California anti-discrimination law covers websites whether or not they are, or are connected to, a physical place, and that those aspects of Target.com’s services that are sufficiently integrated with those of physical Target Stores are covered by the ADA’s non-discrimination provisions.”

Level Access reviewed the legal rulings in 2016 in a whitepaper. Summary points include:

• 6601 ADA Title III Lawsuits were filed in federal court in 2016, a 37% increase over 2015. Many were settled out-of-court so details are unavailable.
• Both the US and the EU updated their compliance regulations in 2016/2017.
• Video captions were a major issue in the education, and entertainment sectors.
• Screen readers were a major issue in the education, and government sectors.
• Low-vision issues and forms were a major issue in healthcare, and government sectors.
• Major lawsuits included the Winn-Dixie case referenced below, BMI/BND Travelware (a luggage retailer) who was sued under both ADA law and a California civil rights law, Deckers Outdoor Corp (the company that makes Uggs) which is still pending, Sweetgreen (salad restaurant), Bank of America, and E*Trade.

Winn-Dixie Case Puts Spotlight on Website Accessibility/Compliance by Carol Lumpkin, Stephanie Moot and Shawn Hogue at Chain Store Age. This 2017 decision addresses the same kinds of complaints the Target case addressed — the website must be accessible because it is a gateway to the stores. Emphasis added.

This Florida case also include an entire section on vendors: It is a common practice for businesses to host links on their websites that connect them to partners, vendors, or other third parties. The Court’s ruling this week suggests that even if a business hosts a compliant website, it may be held liable for noncompliance under Title III of the ADA, if it links up to websites that are inaccessible.

The Court in Winn Dixie ruled that “There are 6 different third parties . . . who interface with Winn Dixie’s website so Winn-Dixie needs to make sure that those third parties also make sure that their websites are accessible” and “The Court also finds that the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.” This language suggests that an operator or owner of an accessible website may face liability for the noncompliance of vendors that it features through its links.

In January 2018, the New York Post announced a blind woman from Manhattan filed lawsuits against more than 30 websites (mostly retail by the looks of it) for being incompatible with screen readers, and that a disabled man in Manhattan has filed 21 lawsuits for similar offenses.

Canada

The Canadian government has published the Standard on Web Accessibility which outlines the uniform application of a high level of web accessibility across Government of Canada websites and web applications.

=AODA

The Accessibility for Ontarians with Disabilities Act (AODA) applies to people and organizations both public and private and requires accessibility accommodations for all.

Standards sur l'accessibilité du Web

The Standards sur l'accessibilité du Web applies to the government of Quebec and is a modified version of WCAG 2.0 Level AA.

The EU

EN 301 549 is similar to the US Section 508 procurement legislation. It references not just web technologies but other technology as well. When it deals with web standards, it references WCAG Level AA.

France

The Référentiel Général d'Accessibilité pour les Administrations (RGAA) requires all government websites and public services to comply with a modified version of WCAG Level AA.

Germany

The Barrierefreie-Informationstechnik-Verordnung (BITV 2) requires compliance by all government websites and is based on a modified version of WCAG.

Ireland

The Code of Practice on Accessibility of Public Services and Information provided by Public Bodies is based on WCAG 1.0 and requires government websites to comply to it.

Italy

Law 4/2004 ("Stanca" Law) is based off of WCAG 1.0 Level AA and applies to government websites.

The Netherlands

Netherlands: Web Accessibility Laws and Policies describes the WCAG Level AA accessibility requirements for government websites.

Spain

UNE 139803:2012 is the norm entrusted to regulate web accessibility. This standard is based on Web Content Accessibility Guidelines 2.0

Australia

The Disability Discrimination Act covers all government and non-government websites and requires compliance with WCAG Level AA.

The UK

The Equality Act of 2010 is a broad civil-rights style law that covers not just disability but a host of other discrimination scenarios. According to Out-law.com, "While the EQA does not expressly refer to websites, the consensus has been that the reference to the "provision of a service" applies to commercial web services as much as to traditional services."

Additional Resources

• The Legal category of The Paciello Group's blog
• The Law Office of Lainey Feingold posts an article entitled Digital Accessibility Laws Around the Globe dated from May 2013, but last updated May 2018 (as of this writing) that keeps track of what laws and rulings may affect each of roughly 16 countries.
• Blind customers locked out by bank web upgrades by Sally Abrahams and Lee Kumutat at the BBC