Website accessibility is a requirement of the Equality Act 201.  The first of a two-part article explaining Equality Act 2010 to websites. In our last article, Website accessibility: Industry standards and best practice, we considered how the Equality Act 2010 would be implemented, and considered what the new BSI Standard for website accessibility might look like. Although making a website accessible is not a new legal requirement, the recent implementation of the Equality Act 2010 has prompted many to rush out warnings that websites need to be accessible for disabled users.

The Equality Act restates the requirement under the 1995 Disability Discrimination Act that it is unlawful for service providers (including businesses operating a website) to discriminate against - either directly or indirectly - a disabled user. Service providers have to make 'reasonable adjustments' to ensure disabled users have equivalent levels of access to, and use of, a website. 

What is a 'reasonable adjustment'?

The difficulty for service providers who operate a website - both before and after the Equality Act - has always been in understanding what 'reasonable adjustment'’ means. 

Before the Equality Act came into effect, 'reasonable' included:

• consideration of the size - physical and financial - of the service provider
• the extent of the difficulty faced by an affected user
• the cost and/or difficulty of making changes which meant that all users could access a website on an equal basis
• consideration of any best practice or standards that the service provider's peers or competitors were using

There is no reason to suspect that this will be interpreted differently under the Equality Act, so ensuring website compliance is likely to remain focused on following best practice guidelines and standards.

Internet service providers

For Internet Service Providers (ISPs), the Equality Act has a different twist, with the inclusion of a new 'defence' against complaints that a website is not accessible. Promptly taking down a website that is alleged to be non-accessible will be a defence against a complaint of making available a website which discriminates against disabled users. 

The important point to note is that it is not necessary for the site in question to have been found to be inaccessible. It is enough that someone has complained that it is. If the ISP does not take the site down, it may also be liable for discriminating against disabled users if the courts subsequently find the website to be inaccessible. Since accessibility is based on reasonable adjustments, it will be a difficult - and subjective - decision for an ISP.

This defence (which appears to have been copied from the defence that ISPs can raise in defamation and similar claims), clearly puts ISPs and website owners in a potentially conflicting relationship. In reality, an ISP is unlikely to take a site down as the result of a single complaint, but could take an offending website down after a judgment, particularly if asked to do so by a public body such as the Equality and Human Rights Commission. 

This new defence also opens the door to consumer campaigning, either against sites which a group of users genuinely believe is not accessible or, more worryingly, by users with another agenda; for example animal rights activists. ISPs could be left with a difficult choice between facing down angry consumers or breaching its contractual terms with the website owner.

In the second part of this article we will look at ways in which website operators can show that they have made reasonable adjustments.

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