How to give legal teeth to digital accessibility - New York vs Norway

The plain fact is that there are an awful lot of inaccessible websites and apps out there - contrary to both legal requirements and good business sense. We've been calling for the UK Government to give the law some teeth for several years now. Let's look at the two main methods by which companies can be made to take their legal responsibilities more seriously.

Method 1: The New York (and Florida) way

The New York skyline, including the Empire State building, photo taken during daytimeThe US are a much more litigious lot than we are in the UK. Sometimes that leads to unwelcome outcomes (such as MacDonald's customers around the world having to settle for luke-warm coffee), but sometimes it can be helpful too. One example is in the area of digital accessibility, where their level of litigation is orders of magnitude higher than ours – and nowhere higher than in New York State.

So how do we in the UK do it? We don’t have clear figures for legal cases concerning inaccessible websites or mobile apps here. This is because companies are loathed to lose a legal case and henceforth become a legal and very public precedent. As a result, they settle out of court with a sum for the plaintiff and a promise to resolve the issues. As this is prior to any legal outcome it is not binding. It also doesn't come with any publicity as anonymity as part of the settlement agreement. It doesn’t lead to headlines and often doesn’t lead to an accessible website either.

So that's how it's done here in the UK; low-key and low impact and a landscape of inaccessibility a decade and a half after the law came into effect.

Compare that to the US. In the US their dirty digital laundry is very much aired in public. Going for the big buck settlements with legally-binding outcomes is very much their bag. As a result we have solid stats and substantive, positive outcomes for users with disabilities. Let's look at some figures:

An infographic with text that reads: DA web accessibility-related lawsuits exploded with a 181% increase in 2018 over 2017. In 2017, there were 814 cases. In 2018, we tracked 2285 lawsuits filed.

Photo credit: 2018 ADA Web Accessibility Lawsuit Recap Report [Blog] via Usablenet

Website monitoring company Usablenet have published a web accessibility lawsuit report that has captured every legal case in the US throughout 2018. There were over 2,200 cases in all; a massive 181% increase over the previous year. Interestingly, though, the vast majority of cases (96%) were filed in either New York or Florida. It should be noted, however, that only the filings are in these two states - the companies listed are from all over the US. Goodness only knows what levels of litigation would result if other states decided to champion digital accessibility in this way.

Being involved in such a legal case has an obvious financial risk to the company in question. Moreover, being conducted in the public domain, it also has the potential for significant accompanying brand damage too.

"And what has been the result?" I hear you ask.

Well, apart from a thousand or so extra accessible websites a year, having strong, longstanding legislation (the 'Americans with Disabilities Act' and 'Section 508') with such concrete consequences for non-compliance has resulted in tangible benefits for disabled users everywhere. As a direct result of the legal requirement for accessibility before products are able to be purchased at scale for US Government and the education sector, the likes of Microsoft and Apple have given accessibility the Rolls-Royce treatment (I've no idea what the equivalent analogy would be in terms of American cars I'm afraid).

We are now in the fortunate position that the big tech manufacturers are vying for brand dominance in the area of accessibility and see performance in meeting the diversity and inclusion agenda on par with user security and data privacy. The average company delivering services online, however, still needs a wake-up call.

So that's one way to give the law some teeth; rely on dynamic disabled individuals or organisations (usually charities) to fight cases one by one. There's no doubt it works, but it takes huge amounts of effort and money and isn't really having a noticeable impact in the digital Wild West that is the world wide web.

Method 2: The new way like Norway

The second approach is a radical one. Brace yourself. Ready? Here it is… Have the government enforce the law the way they already do in so many other areas, like crime, taxation or even parking tickets and fishing permits.

Why leave it to individuals to fight it out in the courts when governments already have all the machinery in place to enforce the law and ensure a high level of overall compliance?

Digital inclusion is important. Anyone that's read any of my posts will be aware of the overwhelming ethical, legal and very real business cases for accessibility. In this mobile-first world of computing in extreme environments, inclusive design quite literally benefits every user on a daily basis. That's why we've been calling for a bigger player to assist in realising significant change before another decade passes.

Oslo, Norway skyline with tower blocks on the water front

The Norwegian government has decided to step up and begin web accessibility enforcement. DIFI (their equivalent of our Equality and Human Rights Commission, EHRC) evaluates websites for compliance and then issue a deadline and subsequent fines.

One example is the national airline, SAS, that was given a year to comply and, when it didn't, they were given an additional week and threatened with a tough €15,000 fine every day thereafter. After no movement and lots of complaining about how hard it would be to remedy the issues and no action whatsoever, they then fixed the issues in 12 days to everyone's satisfaction.

Hear from myself, representatives from Norway, and presenter Peter White on this week's BBC In Touch programme discussing enforcement and how a new approach such as this is actually making a difference. There's still a long way to go, but Norwegian travelers can now at least browse and buy tickets with their biggest airline regardless of disability or impairment - along with many other sites too.

The law needs teeth

Here in the UK, we need Government to champion millions of users who are being left behind by the digital revolution. With public and commercial services being driven ever-more online, and our employment and education options, entertainment and social interactions dependant upon digital, why does Her Majesty's Government see this area of enforcement as less important than parking in the wrong spot or illicitly catching a fish? The course and quality of people's lives are at stake.

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