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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.
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
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'
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.
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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