Legal Developments in Web Accessibility
Two items of legal interest appeared in this morning’s feeds. The first is a press release that appeared on yesterday’s Cloud Computing Journal, describing a new subscription product called Digital Accessibility Trends Analysis (DATA).
The result of a partnership between TecAccess and the law firm of Powers Pyles Sutter & Verville PC, the intention of DATA is to provide businesses and government agencies quarterly reports from the competitive market landscape of accessibility developments.
From what I’ve read, one of the more intriguing attributes is the stated emphasis on cultivating what PPSV attorney John Kemp calls “universal accessibility,” a concept that I interpret to span not only case studies but also geographic borders. Such applications have the potential to inform product development, hiring practices and design strategy. Subscribers will be provided a quarterly report detailing case studies, news bulletins and recommended guidance tactics of global relevance:
Forthcoming issues will further explore global disability policy, as well as the current climate of the legal and business sectors. In addition, DATA will uncover international developments, such as the British case of Latif v. PMI, which raises serious questions about the jurisdiction of accessibility laws and whether American companies will be held to the standards of other countries in which they reach or deliver services to customers.
The second item of interest is an article written by the Accessibility and Accommodations Practice Group of the law firm Proskauer Rose LLP concerning a vital topic: the application of Title III of the Americans with Disabilities Act to entities other than brick-and-mortar institutions.
Readers of this blog understand that the definition of “public accommodation” is crucial to any discussion regarding how accessibility for the Web is legally interpreted. As stated in the article, Title III of the ADA does not expressly define places of public accommodation as a solely physical location. Nor is there language that specifically covers goods and services made available over the Internet, since the ADA was passed in 1990 during the early days of the Web. One could argue that the term “discrimination” can be broadly defined as a “denial of opportunity,” thus inclusive of such new forms of access as digital media.
On the other hand, a lack of firm legal precedence has resulted in a wide range of outcomes when legal cases arise. The most notable example remains NFB v. Target Corp., in which Target was ordered to pay a class-action settlement and take steps to improve the accessibility of their online store. This result has done little, however, to supply a definition of “public accommodation” that covers both physical locations and the Internet. In any claims case, the Plaintiff must prove that an inaccessible website is analogous to the discriminatory practice of preventing people with disabilities from entering a public building:
Notwithstanding the expansive view expressed in these cases, it appears that in most jurisdictions, as in the Target case, a plaintiff must allege some kind of connection between a Web site and a physical place of public accommodation to state a claim under Title III. The few courts that have been squarely faced with the question as to whether a Web site constitutes a “place of public accommodation” have found that it does not. … Moreover, several cases including those discussed in the Target opinion illustrate that, irrespective of whether Title III’s coverage is limited to physical spaces or facilities, a plaintiff’s Title III claim regarding Internet services will fail unless the plaintiff demonstrates a rather strong “nexus” between the Web site and a physical place of public accommodation.
The article concludes with two takeaway points. One, the number of lawsuits targeting inaccessible websites will continue to rise as the subject gains greater visibility. It’s likely that claims will span private businesses in addition to such public sector services as e-government, libraries and educational institutions — not only with websites, but also with such online applications as iTunes and Google Maps.
The second point is that Title III litigation is very much in constant flux. While we can expect more legal activity surrounding the issue of digital accessibility, our ability to accurately predict the results is very much shrouded in mystery. I like to think that most people understand the value of providing goods and services to users of all abilities. It might be time to specifically interpret Title III in the context of doing business online, aligning parallel paths in technology, trade and government.
Recent Comments