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section heading icon     law and online accessibility

This page deals with anti-discrimination legislation affecting online services.

It covers -

It is complemented by a more detailed discussion of Australian anti-discrimination law.

There is a broader treatment in the Human Rights profile, which also features a chronology of key accessibility enactments and decisions. Highlights of online accessibility litigation and campaigns are found in the final pages of this guide.

subsection heading marker     global frameworks

Like many aspects of regulating the web, 'accessibility' legislation is a matter for individual nations. In practice there is no global agreement to ensure that the disabled (and those on the wrong side of the 'digital divide') can make effective use of your site.

Australia is a signatory to a number of international human rights agreements, of which most pertinent are the:

International Covenant on Civil & Political Rights (ICCPR)

International Covenant on Economic, Social & Cultural Rights (ICESCR)

ILO Convention Concerning Discrimination in Respect of Employment & Occupation (CDREO)

Declaration on the Rights of Disabled Persons (DRDP)

Convention on the Rights of Persons with Disabilities (CRPD).

A perspective on those agreements is provided by George Williams' Human Rights Under The Australian Constitution (Melbourne: Oxford Uni Press 1999), Discrimination Law & Practice (Leichhardt: Federation Press 2004) by Chris Ronalds & Rachel Pepper and Theresia Degener's 'Disabled Persons & Human Rights: The Legal Framework' in Human Rights & Disabled Persons: Essays & Relevant Human Rights Instruments (Dordrecht: Nijhoff 1995). Degener notes that where disability is addressed in the 'International Bill of Rights' (ie the UNDHR, ICCPR and ICESCR) it is "only in connection with social security and preventive health policy" rather than as a "comprehensive human rights issue".

There is a more detailed examination in the August 2000 submission by the Australian Human Rights & Equal Opportunity Commission to the Federal Parliamentary Inquiry Into Australia's Relations with the United Nations In The Post Cold War Environment. It is complemented by the US government paper Understanding the Role of an International Convention on the Human Rights of People with Disabilities: An analysis of the legal, social and practical implications for policy makers and disability and human rights advocates (PDF) and the 2007 UN legislators Handbook on the Rights of Persons with Disabilities (PDF), which discusses the Convention on the Rights of Persons with Disabilities.

The 1993 United Nations Standard Rules on the Equalisation of Opportunities of Persons with Disabilities - a broad statement of aspiration rather than legislation - recommends that states

develop strategies to make information services and documentation accessible for different groups of persons with disabilities.

The UN Convention on the Rights of Persons with Disabilities (initially promoted as the Comprehensive & Integral International Convention on the Protection & Promotion of the Rights & Dignity of Person with Disability) followed establishment of an Ad Hoc Committee on Disability Rights Convention (discussed here) in 2001. It has been criticised as understating concerns about access to electronic commerce and online services, given a traditional focus on the built environment and mechanisms such as braille.

The Convention came into effect in May 2008. It embodies eight principles -

a Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons
b Non-discrimination
c Full and effective participation and inclusion in society
d Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
e Equality of opportunity
f Accessibility
g Equality between men and women
h Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities

subsection heading marker     Australian law

Within Australia the major legislation is the Commonwealth Disability Discrimination Act 1992 (DDA), administered by the Human Rights & Equal Opportunity Commission (HREOC).

The Commission's detailed
guide to the DDA is online. A detailed report reviewing the Act was released in 2004 by the Productivity Commission and context is provided by HREOC's 255 page Federal Discrimination Law 2004 handbook.

The @ccessAbility Online Resource site established by the Australian National Office for the Information Economy has been replaced by a more restricted AGIMO resource.

We have identified major Commonwealth and state/territory anti-discrimination legislation here, along with associated resources.

That legislation includes the Western Australian Equal Opportunity Act 1984, Tasmanian Anti-Discrimination Act 1998 and Australian Capital Territory Discrimination Act 1991.

Studies include Jacob Campbell's 2005 article 'Using Anti-discrimination Law as a Tool of Exclusion: a Critical Analysis of the Disability Discrimination Act 1992 and Purvis v NSW'

subsection heading marker     overseas

As with Australia, most overseas anti-discrimination legislation is not specific to new media.

In the UK the primary legislation is the 1999 Disability Discrimination Act (DDA), administered by the Disability Rights Commission (DRC).

In the US the Department of Justice has a site dedicated to the 1990 Americans With Disabilities Act (ADA). Unfortunately a federal judge indicated in October 2002 that the ADA did not extend to cyberspace, a judgement that will be contentious. A number of independent guides to the ADA are online. It has been explored in works such as the 2004 When the Americans with Disabilities Act Goes Online: Application of the ADA to the Internet and the World Wide Web (PDF) by Steven Mendelsohn & Martin Gould

The Canadian federal government's Guide to the Internet indicates that

It is every Canadian's right to receive Government information or service in a form that can be used, and it is Government of Canada's obligation to provide it.

In practice, while government agencies have been encouraged to adopt the Treasury Board Secretariat's Common Look & Feel Guidelines (CLF), the private sector is not obligated to provide information "in a form that can be used". Developers are reminded that

Since the end user cannot count on either standard technology or helping devices to ensure access to information on the Web, the onus is on the web page developer to deliver the message in a way that allows everyone to benefit.

We have identified major overseas anti-discrimination legislation here.

subsection heading marker     broadcasting

A perspective on online accessibility is provided by frameworks for access to broadcast content.

In Australia for example there is a commitment under the Disability Discrimination Act to 'readable television programs', is broadcasting programs that include captions that can be read by viewers with hearing disabilities. Commercial and government broadcasters received temporary exemptions in 2003, on the expectation that captioning would increase from 40% of programs in 2003 to 55% by the end of 2005 and 70% by the end of 2007.

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version of May 2008
© Bruce Arnold | caslon analytics