Website Law

Discrimination against people with disabilities is prohibited by law, but website owners often don’t realise how the law affects websites.

A 2005 study found that as many as 97% of European public service websites failed to provide a minimum level of accessibility. There are few reasons to think that commercial websites are more accessible than governmental websites.

Web designers, developers and operators clearly need to be more conscious of accessibility issues. Even if operators are not deliberately excluding disabled users, they could find themselves on the wrong side of the law.

This post gives a brief overview of the Equality Act 2010, its application to websites, the obligations it places on their owners, and the practical steps that may be taken to improve accessibility.

The Equality Act 2010

Since 2 December 1996 (when the Disability Discrimination Act 1995 came into force) website owners have been obliged to ensure that their websites are accessible to users with disabilities. After over a decade in force, the DDA’s requirements were merged into the Equality Act 2010.  The 2010 Act was intended to bring clarity to the diversity of previously-extant discrimination legislation. Despite the goal of clarity, the new legislation can be more confusing than the old.

Section 29(1) of the 2010 Act says that:

A person … concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

Accordingly, neglecting to provide a service to a disabled person that is normally provided to other persons is unlawful discrimination. This applies to commercial web services as much as to traditional services.

Applying the law: an example

Examples of website design issues that are affected by this law abound.

For instance, many visually impaired visitors use speech synthesizer software to read the text in the HTML code of web pages and translate it into audible speech. However, many websites include images that contain text as part of the pre-rendered picture file. These may be unreadable by the software.

If the text is not embedded in the image properties (using an alt tag) or alternatively available in text somewhere on the website, this could render the content inaccessible visually impaired users, and could therefore be discriminatory for the purposes of the 2010 Act.

Reasonable adjustments

Sections 20 and 29(7) of the Equality Act create and elaborate a duty for service providers to make “reasonable adjustments” to enable disabled persons to access their services.

Section 20(6) says that with respect to services relating to the provision of information:

the steps which it is reasonable for [an information service provider] to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

The Equality and Human Rights Commission’s Code of Practice concerning the application of the Act notes that this is a ongoing and evolving duty that should be continually reviewed rather than simply considered once (7.27), and one that should be anticipatory and shouldn’t wait for the disabled user to want to make use of the site (7.21).

Hosting company plug-pulling

A particular concern for site operators (and web hosts) is that the legislation provides for hosting service providers to pull the plug on inaccessible websites.

In provisions similar to those in Regulation 19 of the Ecommerce Regulations, Schedule 25 states that hosting providers will be exempt from liability under the Equality Act in relation to discriminatory material they host if they have no actual knowledge of its discriminatory nature, and they “expeditiously remove” it upon becoming aware of its nature. This presents the possibility of a complainant avoiding court altogether by approaching the hosting company.

Cases involving disability discrimination and websites

Before the Equality Act, there were two widely publicised prospective legal actions against companies on the grounds of discrimination against disabled users arising from their website’s inaccessibility. The Royal National Institute of Blind People had intended to pursue the actions, but the (anonymous) companies in question made the requisite changes to their website design before the matter was brought before a court.

Though a similar case that did come before a tribunal found that an online exam was non-compliant and discriminatory against a blind candidate, the application of the law to commercial websites is largely untested, and it is difficult to predict exactly how high the bar of reasonableness will be set by the courts.

Practical steps

The World Wide Web Consortium (W3C), the international organisation concerned with providing standards for the web, publishes guidelines which are a good indicator of what the court would reasonably expect of website owners and businesses to follow to ensure that websites are as accessible as possible and in line with the Equality Act.

At the most basic (“priority 1″) level of compliance, these include suggestions such as:

• Providing text to accompany non-text elements (such as pictures or graphical buttons for navigating).
• Document organisation for sensibly ordered readability without the need for the accompanying style sheets.
• Make sure all information conveyed through coloured content can be inferred or is available without colour.
• Clearly and simply labelling the websites content.
• Clearly delineating changes in the natural text of the document to other content, such as captions.

Compliance with both the priority 1 and 2 checklists is recommended. The priority 2 checklist includes:

• Ensuring the foreground and background colours have sufficient contrast for those who struggle with differentiating colours.
• Using an appropriate markup language rather than images to convey information.
• Using header elements to convey structure.
• Using style sheets to control the layout and presentation.
• Clearly identifying the target of each link.
• Providing further information about layout (e.g. a sitemap).
• Using navigation mechanisms in a consistent manner.
• Providing metadata to add semantic information to web pages.
• Dividing large blocks of information into more manageable blocks when possible.

The W3C guidelines have been adopted as the benchmark test in Australia, following the case of Maguire v SOCOG (2000), which concerned a website for the Olympic Games not being adequately useable by visually impaired people. The RNIB offer free accessibility tips to aid with the technical design of your website, with the World Wide Web Consortium standards in mind.

The British Standards Institution provides a comprehensive and non-technical code of practice on web accessibility aimed at helping businesses achieve wider digital inclusion when commissioning or designing a website, with the requirements of the Equality Act 2010 in mind.

Commercially, many organisations offer web accessibility audits, which can assess the accessibility of a website and give detailed feedback on what changes could be incorporated to achieve greater accessibility.

Engaging with disabled users, for instance through online surveys and feedback systems, and  is another excellent way of flagging potential accessibility problems.

Accessibility should be addressed at the web design stage, because many fundamental design decisions have an impact on accessibility; but as the EHRC Code of Practice requires, the duty does not end there: many types of change to a website could have accessibility implications.

Although it is not a common basis for legal action, website accessibility is important, both from the perspective of legal compliance and because a more accessible website is a website with a greater potential user-base.

Website legal documents are like vitamins: you know they’re good for you, but you probably don’t know exactly what they do.  With a bit of research you could find out what they do – but, let’s face it, even lawyers find legal research a little boring.

There are legal aspects to all websites.  Legislation requires that specific categories of information be disclosed on most websites.  There are procedural hoops that some kinds of website must jump through.  The law also regulates the kinds of content that can be published on a website, and controls the legal nature of the publication itself.

Legal documents on a website can help deal with these issues in various ways.

A well-drafted website legal notice, policy or terms and conditions document can (amongst other things):

• help a webmaster to comply with his or her legal disclosure obligations
• ensure that the webmaster does not improperly abridge customers’ (especially consumers’) rights
• ensure that website content is licensed to users on an appropriate basis
• limit (or at least attempt to limit) the website owner’s liability in relation to the website
• set out the legal basis upon which products and services are supplied to customers
• remind a website owner of the procedural obligations that the law places upon him or her
• show that the webmaster is serious about legal compliance (important from a marketing perspective)

So, what legal documents do you need for your website?

In considering the appropriate documentation for a website, I usually differentiate between:

• the use of the website
• the sale and supply of products and services
• the collection and processing of personal data

All websites should have some kind of terms and conditions governing the use of the website.  See, for example, the range of website terms of use at Website Contracts.  At a minimum, the terms of use should deal with basic disclosure obligations, include a disclaimer of liability, and provide for the licensing of the website content to users.  Documents fulfilling these functions have many different names.  For example, they may be called terms of use, terms and conditions, terms and conditions of use, website terms, website legal notices, disclaimers, and so on.

Websites that sell anything – goods, services or licences – must also include terms and conditions governing the sale.  Where customers are consumers, the terms and conditions must comply with applicable consumer protection legislation.  Where all customers are businesses, there is greater freedom of contract.  Again, the nomenclature is not exact.  Documents governing the sale of products may be called terms and conditions of sale or terms of supply or simply terms and conditions.  Documents governing the supply of services may be called terms of service, terms of business or service agreements.  See for example: ecommerce terms and conditions.

Data protection legislation (as interpreted by the Information Commissioner) provides that website owners must disclose specific categories of information to users.  For example, they must disclose details of what data is collected, how it will be used, and how it will be kept secure.  Generally speaking, websites that process personal data should include a privacy policy for the purposes of making these disclosures.  Privacy policies can also be called privacy statements or privacy notices – or more rarely data protection policies, statements or notices. See: website privacy policy.

Whilst terms governing website use and terms governing sales can be incorporated into a single general terms and conditions document, the (non-contractual) privacy policy should be kept separate. 

All online traders in the UK and wider EU should know about the right to cancel distance contracts available under the Distance Selling Directive.

This Directive was implemented in the UK by the Consumer Protection (Distance Selling) Regulations 2000 (the “Distance Selling Regulations”), which came into force on 31 October 2000.  The Regulations were subsequently amended by the Consumer Protection (Distance Selling) (Amendments) Regulations in 2005.

The Distance Selling Regulations apply to most contracts between suppliers and consumers made via a website for the supply of goods and services.  See Distance Selling Regulations: disclosures for the exceptions.

The rules dealing with a consumer’s right to cancel are covered by Regulations 10 to 13.

The right to cancel

Regulation 10 gives the consumer a right to cancel a distance contract, provided the consumer gives a notice of the cancellation in writing to the supplier within the cancellation period.  Once this notice is given, the contract is treated as if it had never been made. Hand delivery, postal delivery, facsimile or email are all acceptable modes of delivering a cancellation notice.

Informational requirements

Pursuant to Regulations 7 and 8, the supplier must “provide to the consumer in writing, or in another durable medium which is available and accessible to the consumer” certain information, which includes “the existence of a right of cancellation except in the cases referred to in Regulation 13” (referred to in this post as the “cancellation information”).

See Distance Selling Regulations: disclosures for full details of the cancellation information.

Factors affecting the length of the cancellation period

The length of the cancellation period is determined by:

whether and when the supplier provides the cancellation information; and
whether the contract is for the supply of goods or the supply of services.

Cancellation period in contracts for the supply of goods

“The cancellation period in case of contracts for the supply of goods begins with the day on which the contract is concluded” (Regulation 11(1)), and the end date depends upon the circumstances.

The cancellation information should be provided “(a) prior to the conclusion of the contract, or (b) thereafter, in good time and in any event … at the latest at the time of delivery where goods not for delivery to third parties are concerned” (Regulation 8(1)).

There are 3 main scenarios.

Scenario 1:

In scenario 1, where the supplier provides the cancellation information in time, then “the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the goods” (Regulation 11(2)).

So, where an e-commerce website has properly drafted T&Cs of sale and accordingly provides the proper information, the consumer will have a 7 working day cancellation period from the time of the delivery of the goods.

Scenario 2:

Scenario 2 covers the situation where the supplier fails to supply the cancellation information in good time (see above), but does provide the cancellation information “within the period of three months beginning with the day after the day on which the consumer receives the goods”.

In this case, “the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information” (Regulation 11(3)).

Scenario 3:

The last scenario applies where the supplier has not provided the consumer with the cancellation information at all.

In this case “the cancellation period ends on the expiry of the period of three months and seven working days beginning with the day after the day on which the consumer receives the goods.” (Regulation 11(4)).

In other words, even if the consumer has not been advised about his or her right to cancel, the cancellation period expires after three months and 7 working days following the receipt of the goods.

Cancellation period in contracts for the supply of services

The applicable cancellation period for contracts for the supply of services is very similar to that for the supply of goods, and is governed by Regulation 12.

Here, the cancellation information should be provided “(a) prior to the conclusion of the contract, or (b) thereafter, in good time and in any event … during the performance of the contract…” (Regulation 8(1)).

The main difference in the calculation of the cancellation period in the case of a contract for services is that the cancellation period may come to an abrupt end if the provision of the services has commenced, or alternatively if the services have been completed.

Scenario 1

In scenario 1, where the supplier provides the cancellation information “on or before the day on which the contract is concluded … the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the contract is concluded” (Regulation 12(2)).

However, “unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation … in respect of contracts … for the supply of services if the performance of the contract has begun with the the consumer’s agreement – before the end of the cancellation period referred to in Regulation 12(2); and after the supplier has provided … [the cancellation information]” (Regulation 13(1)(a)).

Scenario 2

In scenario 2, where the supplier provides the cancellation information to the consumer “within the period of three months beginning with the day after the day on which the contract is concluded, the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information.” (Regulation 12(3)).

Note that Regulation 13(1)(a) may also apply here, where performance of the contract begins after the provision of the cancellation information.

Alternatively, under Regulation 12(3A), “where the performance of the contract has begun with the consumer’s agreement before the expiry of the period of seven working days beginning with the day after the day on which the contract was concluded and the supplier has not … [supplied the cancellation information] … on or before the day on which performance began, but provides to the consumer … [the cancellation information] … in good time during the performance of the contract, the cancellation period ends – (a) on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the information; or (b) if the performance of the contract is completed before the expiry of the period referred to in sub-paragraph (a), on the day when the performance of the contract is completed.”  This means that the consumer has a cancellation period of 7 working days from the time the consumer receives the cancellation information, unless the provision of the services has started with the agreement of the customer.  In that case, the cancellation period ends within 7 days of the consumer receiving the information, or when the contract has been performed.

Scenario 3

In scenario 3, where the supplier does not provide the consumer with the cancellation information at all, and the provision of the services has not yet begun, “the cancellation period ends on the expiry of the period of three months and seven working days beginning with the day after the day on which the contract is concluded.” (Regulation 12(4)).

Other exceptions to the right to cancel

The exceptions to the right to cancel are governed by Regulation 13.  (Note that I have dealt with Regulation 13(1)(a) above, and so will ignore this provision for the purposes of this section.)

Under Regulation 13(1), “unless the parties have otherwise agreed”, the consumer will also not have the right to cancel “in respect of contracts:

(b) for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier;

(c) for the supply of goods made to the consumer’s specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly;

(d) for the supply of audio or video recordings or computer software if they are unsealed by the consumer;

(e) for the supply of newspapers, periodicals or magazines; or

(f) for gaming, betting or lottery services.”

Other information

Where the right to cancel exists, the supplier must also advise the consumer, if the consumer needs to return the goods to the supplier (Regulation 8(2)(b)(i)), and who is to be responsible for the cost of returning the goods to the consumer (Regulation 8(2)(b)(ii)).