Does web accessibility really “place ruinous obligations on websites”? – analysis of Internet Association brief

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association.”

This, according to ConsumerAffairs and Media Post News, is what a brief claims that was filed last week by the Internet Association, which represents Google, Amazon, Facebook, AOL and eBay, among others.

The brief is a defence from some of the Internet’s leading companies to the latest round of “does the Americans with Disabilities Act apply to websites?” to go through the American courts.

This time it’s eBay who are the focus of a disabled person’s case, in a lawsuit that a deaf Missourian, Melissa Earll, brought back in 2010, and which she recently revived through an appeal to the 9th U.S. Circuit Court of Appeals.

According to the article:

the Internet Association rushed to eBay’s defense, filing a friend-of-the-court brief saying the web is far too complicated to accommodate disabled people.

“The Internet is complicated, and its technical inner workings are regulated not by any government, but by a combination of individual technologists and an interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning,” the group argues in its brief.

“Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association.”

I’ve not been able to find a copy of the brief, or any mention of it, on the Internet Association’s website. But, assuming the articles are correct in reporting what the brief says, what are we to make of this extraordinary statement?

‘The web is too complicated to accommodate disabled people’

Let’s start with what the The Internet Association say about themselves and their mission, from their homepage:

“The Internet Association represents America’s leading Internet companies and their global community of users. We are dedicated to advancing public policy solutions to strengthen and protect Internet freedom, foster innovation and economic growth and empower users.” (my italics)

Let’s hope that ConsumerAffairs and Media Post News‘ paraphrase of a section of the brief stating that “the web is far too complicated to accommodate disabled people” is not correctly reported. Otherwise it would seem that the Internet Association don’t believe that disabled people could be part of the “global community of users” that they represent.

I’m sure that would dismay the inventor of the world-wide-web, Tim Berners-Lee, Director of one of those ‘interconnected web of technically savvy multi-stakeholder bodies that have overseen the Internet’s evolution from the beginning’, the W3C; and whose quote “the power of the web is in its universality. Access by everyone regardless of disability is an essential aspect” is pretty clear about the possibilities of the web and his intent for it.

What sites say in public compared with what the brief says for them

Moreover, the Internet Association brief’s point of view is not consistent with public statements on the organisation’s members own websites:

“As part of Google’s mission to make the world’s information universally accessible and useful, we’re committed to making accessibility a reality for all of our users, including those with disabilities.” (http://www.google.co.uk/accessibility/)

“We’re always looking for ways to improve the Amazon experience for our customers, including those with disabilities.” (http://www.amazon.co.uk/gp/help/customer/display.html/ref=hp_left_cn?ie=UTF8&nodeId=200942050)

“Facebook is committed to creating a great experience for all people. Learn about the built-in features and technologies that help people with disabilities get the most out of Facebook.” (http://www.facebook.com/help/141636465971794)

If “the web is too complicated to accommodate disabled people” then I guess Google’s ‘mission’, Facebook’s ‘commitment’, and Amazon’s ‘search for ways to improve their experience to those with disabilities’ are all misguided and doomed to failure.

eBay themselves are ‘working hard’ on this ‘impossible task’, even detailing 5 specific things they are doing to try and achieve this on their own accessibility page:

“We work hard to make sure that everyone who wants to use eBay can do so, and have a positive experience. We do this in several ways: We make links on our site descriptive and provide alternative text for images to help people using assistive technology such as screen reader software. We consider accessibility when we design new eBay pages or update existing pages. We increase the contrast between fonts and backgrounds to make pages easier to read. We make eBay easier to navigate without using a mouse. We’ve trained our Customer Support agents to assist users with disabilities.” (http://pages.ebay.com/help/account/accessibility.html)

How do you explain this difference?

So what has got organisations that are saying one thing publicly about the accessibility of their websites to say something completely different through the association that claims to speak with “the Unified Voice of the Internet economy”?

What seems clear is that these organisations want to say they’re doing the right thing with respect to disabled people, but do not want to be legislated into having to do that thing.

That seems reasonable – all organisations would prefer self-imposed requirements to legally-imposed ones.

But it still doesn’t explain what comes over in the brief to be a statement arising from pure commercial fear:

“Applying the ADA to all Web sites may place uncertain, conflicting, burdensome, and possibly ruinous obligations on members of The Internet Association”

To explain what puts the heat in the anxiety of that statement we need to understand what they are saying here:

“Neither the Justice Department nor the Federal Communications Commission has a handle on what technical standards would comply with the ADA’s requirements, in part because existing technical standards make for amorphous legal standards.”

This to me reads that the organisations are specifically worried about how the ADA’s requirements and existing technical standards may be linked. And for ‘existing technical standards’ read WCAG 2.0, which are really the only de-facto technical accessibility standards that anyone’s looking at at the moment (as, through the process of the Section 508 refresh, WCAG 2.0 is supplanting the older technical standards in the original Section 508; and, through a proposed directive, the European Commission want to replace National web accessibility guidelines across Europe with WCAG 2.0 AA).

They’re right that the Justice Department and FCC, like the Equality and Human Rights Commission in the UK, haven’t made it clear how the requirements of the law relate to WCAG 2.0. And they’re right that the last few years of rulings in the United States have certainly provided ‘uncertain, conflicting’ advice in this area, as different courts make different rulings on whether ADA even applies to websites, let alone what the exact implications on web development and use of technical guidelines should be if it does.

This is unfortunate, but I’m guessing that organisations that do not wish to abide by ‘burdensome, and possibly ruinous obligations’ would welcome this uncertainty, as it gives them a period of time before they are potentially forced to comply with those obligations.

No, the key to the anxiety is that phrase ‘burdensome, and possibly ruinous obligations’, and it’s worth looking at whether there’s any truth in it.

What accommodations are reasonable and what are ‘burdensome, and possibly ruinous’ to websites?

Well, I’ve already identified a few places where WCAG 2.0 AA’s requirements indeed go way beyond ‘burdensome and possibly ruinous’ to be infeasible for some websites (e.g. captions and descriptive video requirements on a user-generated video site like YouTube).

So, the Internet Association have a point there.

However, this is only a tiny fraction of the story, and they are seizing on these issues to try and discredit the business case for the whole of web accessibility, which includes a lot to benefit website owners and non-disabled users, as well as benefit disabled people.

It is true that the cost-benefits of accessibility are complex, depending on the accommodation being discussed and the disabled group it is designed to help. Whereas some accommodations are cheap to implement, and benefit the site owner way beyond making the site more accessible for disabled people (e.g. the correct use of Heading tags not only making a page more browsable for blind users, but helping the page’s Search-Engine Optimisation as well), other accommodations are expensive, and have no benefits beyond the potentially small audience that benefit directly (e.g. audio description of videos for blind people).

Pointing out the difference between these situations, and the possibility of bringing British Accessibility Standard BS 8878’s ideas of ‘justifiable reasoning’ to discussions around what accessibility accommodations an organisation may strategically choose to make, is something that I frequently help my clients through.

BS 8878’s approach is similar to the sensible business tactics all businesses use – a combination of SWOT analysis of the accessibility impact of the organisation’s policies and processes, and cost-benefit analysis of the implications of different levels of care and attention to the needs of different disabled user groups from the organisation’s different digital products.

The key to all of this, and to whether the Internet Association’s assertion holds any merit, is whether necessary accommodations are reasonable or not?

From what my clients tell me, ‘reasonable’ is one of the most valuable things I bring to them as a consultant.

‘Reasonable’ is the key to transforming organisations’ views on accessibility from being solely based on an analysis of the threats, to an analysis that brings in the opportunities accessibility can bring to the organisation. And that can only be a good thing.

Why the law is ‘reasonable’

So it should be a relief to organisations to find that ‘reasonable’ is also in the disability discrimination law being talked about in the brief.

Here in the UK, ‘reasonable’ is at the heart of the Equality Act 2010. While it may contribute to the law being potentially more ‘uncertain and conflicting’ due to its perceived vagueness, it proves to the Internet business community that the law includes an understanding of a reasonable balance between the costs incurred by website owners in making their websites accessible and the benefits that disabled people gain from that.

And the same phrase ‘reasonable accommodation’ is present as a general principle under the Americans with Disabilities Act, alongside ‘undue hardship’ which states:

“undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense” (http://www.eeoc.gov/policy/docs/accommodation.html#undue)

So, the ADA’s inclusion of the idea of reasonableness and undue hardship should prevent that worst case of ‘burdensome and possibly ruinous’ becoming anything other than an over-reaction, both for the larger sites the Internet Association represents and the ‘mom-and-pop sites’ on which it argues “complying with the ADA would place an onerous burden”.

For sensible debate we need to diffuse the anxiety by talking about specifics

The debate around what is reasonable for website owners and disabled users to expect from the future of web accessibility is vitally important for both parties.

So I’d suggest that we do not have the time to fall into the trap of mis-representing the issues around the feasibility and costs-benefits of accessibility by making the sort of generalisations and over-reactions that this Internet Association brief (or its reporting) does.

While it is harder to make discussion around individual accommodations as compelling a statement or article, it would really help the debate to proceed without bringing further unnecessary ‘Fear, Uncertainty and Doubt’, which we can all do without.

What do you think?

But those are just my thoughts. Please share your comments below.

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