RNIB and BMI-baby accessibility lawsuit: how BS 8878 can help prevent you getting sued
Four weeks ago my popular accessibility myths blog stated that it was a myth that ‘the best business case for accessibility is the law’.
Over Christmas, the RNIB made some very valid comments on my blog on the balance between legal and business drivers for accessibility. And my experience with them is that they generally have a policy of working with organisations to help them improve their accessibility rather than being confrontational.
And yet three days ago they decided to bring legal action against BMI-baby.
So what happened?
RNIB have brought cases in the past against sites that resisted improving their accessibility, but haven’t done this since settling a couple of cases out of court in Julie Howell’s time as their Digital Policy Development Manager in the mid-noughties.
The RNIB are likely to have been looking at what their counterpart in the USA – the National Federation for the Blind – has been doing, successfully filing complaints that google programs discriminate against blind students.
The view seems to be emerging that ‘naming and shaming’ can get results.
Hence the RNIB lawsuit and, more importantly, their press-release about it.
What’s likely to happen next?
The RNIB may have already gotten much of what it wants from the adverse press that they’ve already generated around BMI-baby.
They needed to prove they had teeth, and they have.
As expert lawyer Martin Sloan from Brodies commented on my myths blog: ‘adverse media coverage arising out of an alleged discrimination claim’ would be a bigger accessibility driver for organisations than straight legal compliance with the Equality Act 2010.
So I think it’s very unlikely to go to court, as BMI-baby will want to end that adverse media coverage as soon as possible, and will not want their reputation further damaged by a court case.
So what should BMI-baby do right now?
Settle out of court if they can, as soon as possible.
The costs of the negative publicity to their brand whether they win or lose a court case mean there is nothing for them to win.
Letting their dispute with the RNIB get to this public press-release stage means in some ways they’ve already lost, as they will be brought up as a ‘cautionary tale’ by every accessibility service agency and consultant when they are touting for business from now on. There is no case-law in the UK around the Equality Act, so every potential case becomes part of the ‘business case’ behind accessibility.
So all BMI-baby can do is to accept they need to do more, right now, convince RNIB to drop the case quietly, and try and turn the press attention around by publicly fixing the site quickly.
Will that be an end of it?
Unfortunately, I don’t think so.
Fixing one website will get rid of the current threat, but not the overriding risk.
Because BMI-baby, like most companies, have more than one website. BMI-baby is part of BMI, which is itself owned by Lufthansa, so the accessibility of all of these sites might also be called into question.
BMI-baby also use a Gowalla smartphone app to run their loyalty scheme. This sounds like a great, innovative idea. However, is that app, in all its versions (iPhone, Android and Blackberry), accessible too? Like many apps the answer is likely to be no.
If BMI-baby don’t have a strategy for how to ensure accessibility is considered across all their websites, apps and other digital products, the fix for their website will just be a sticking plaster over one Achilles heel which leaves others unaffected.
And if the wind has changed and ‘naming and shaming’ is becoming more of an accepted strategy by disability organisations, having an accessibility Achilles heel is becoming one risk which website owners should address with more urgency.
How BS 8878 can help BMI-baby (and others) prevent problems in the future
BMI-baby should look into strategically embedding accessibility into the creation of all of their digital products, both now and in the future. Only this will properly remove their risk.
Many other organisations, including the BBC, IBM and Lloyds-TSB shared their accessibility experience to help create BS 8878, as they understood that embedding was crucial to their future ability to minimise risks and maximise benefits around accessibility.
The BS 8878 Standard that would be the start for any legalisation under the Equality Act (it’s the only accessibility Standard referenced as linking with the Act on the Equality and Human Rights Commission’s site) is the same Standard whose adoption would best prevent any legislation in the future.
As the lead-author of BS 8878, I would advise BMI, and any other organisations worried they might be open to similar legal difficulties, to learn more about BS 8878 or get some BS 8878 training as soon as they can.
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And if you need any guidance on how legal and other business drivers for accessibility might impact your organisation, please contact us.
Update April 2012
Well, in a good move on BMI-baby’s part, it looks like they have taken some measures to fix their site.
In a statement from RNIB, Sam Fothergill says:
“RNIB is pleased BMI baby has finally listened to their blind customers, and RNIB, and made changes to its website which now enable blind people to book flights. Prior to the changes blind people visiting the website weren’t even able to select their flight dates as they were only able to do so by using a mouse. Blind people are unable to use a computer mouse because they’re not able to see the arrow on screen which would be used to select holidays dates.
“There are a few other issues which BMI baby need to fix, such as making it possible for a blind person to pre-book their seat. Currently this part of the website isn’t accessible to blind people. BMI baby and RNIB are looking into these issues and giving consideration as to whether it is now possible to settle the legal proceedings. Unfortunately we are unable to comment further at this time.”