Over the past few weeks ADA has received two high profile examinations as to its applicability to the Web. Both results have been superficially saying one thing, but under-the-covers saying something much different. As a result its becoming more difficult and more frustrating to decide what is and isn’t illegal under United States law.
Eliot Spitzer, the New York Attorney General has secured two settlements with Priceline and Ramada - both known travel agencies with a very strong web presence. Spitzer charged both websites for being in breach of ADA in relation to their inaccessible websites. Both companies settled in making certain repairs to their website and compensation for the investigative time.
The highlights of Spitzer’s positive move is that he was using the Web Content Accessibility Guidelines of the W3C as a basis for the settlement. Both travel agencies have a list of guidelines that have to be met.
Superficially this is a good indication for the applicability of ADA to the Web. Using the WCAG as a basis for comparision is a step in the right direction. Although two points should be noted:
- Neither travel agency admitted to any wrongdoing in the settlement
- The interesting reading in the settlement is what guidelines were left out - as Matt May discovered.
So a deeper analysis shows a level of uncertainty - or at least Priceline’s and Ramada’s ability to negotiate down the level of compliance needed.
The second ADA-related reference is the Appeals Court decision into SouthWest airlines inaccessible website. Originally the Florida District Court dismissed AccessNow’s argument with the ludicrous decision that since the Web isn’t a physical location it is exempt from ADA. Looking at precedents in the insurance and telephone industries, there is no requirement of a physical presence in ADA.
This judgement was challenged by Access Now, and subsequently dismissed by the Appeals court. Media are reporting this with the conclusion that ADA doesn’t apply to the Internet - that is the superficial judgement. Yet the actual Court findings did not actually examine that very question.
The SouthWest airlines challenge got dismissed in the Appeals Court because of procedural problems. Access Now changed the basis of their argument making it difficult for the Appeals court to consider an appeal on the original ruling. In effect, Access Now were seen to be launching an independant challenge, not an appeal to a previous judgement.
From a community level, these cases are having some visibility. That is good for web accessibility. Although the legal shenanigans continue, there is no question that creating accessible websites is the right thing to do. It shouldn’t take a court case to establish that people should be doing the right thing. Its common sense.
Unfortunately the feeling is that some organisations will not do a single thing towards accessibility until a “perfect landmark judgement” is made defining exactly what has to be done to comply. I guess litigation is the only way of convincing such a group of their obligations, yet none of these companies seem willing to engage in such a landmark judgement - bailing out in a settlement doesn not make a ruling, only offering a precedent that can be ignored.
We are closer now to that judgement in the US. Notwithstanding we already have Bruce Maguire to thank for the landmark decision against the Sydney Olympic Games Organisation Committee as a basis for current and future rulings. Yet this Australian case isn’t an American one, and ADA is about Americans.