Pokemons in the Amazon Jungle: Web Accessibility, Disability Discrimination, and the WOW Factor

Presentation to Web Essentials 2004 Conference
September 30, 2004

Bruce Maguire
Policy Officer
Human Rights and Equal Opportunity Commission

Good afternoon everyone. I begin by acknowledging the traditional owners of the land on which we are meeting today.

I am here today representing, firstly, the Australian Human Rights and Equal Opportunity Commission (HREOC), and, second, I'm here to represent at least 20% of the population, and 20% of your customers and users if you are a web developer or web content manager: of course, I'm referring to people who have a disability.

Personal Reflection

Some years ago, my 7-year-old son came into the loungeroom and asked" "dad, what's your favourite Pokemon?". Now, this question created a bit of a dilemma for me. On the one hand, I wanted to maintain my image as the wise, all-knowing dad; but, on the other hand, the plain and simple fact remained that I had absolutely no idea what a Pokemon was. So I resorted to that devious strategy that has been used by bewildered fathers since the dawn of civilisation. I said to my son, "well now: what's your favourite Pokemon?". He replied, "Pikachu". "well fancy that", I exclaimed, "that's my favourite Pokemon too!"

Later that night, after my son had gone to bed, I crept into my home office and went to the web to find out as much as I could about Pokemons. Some sites weren't accessible, but some were. In fact, I found a small site where I could buy the latest Pokemon cards that weren't available in Australia yet, and my son had an ecstatic birthday that year.

It's hard to believe that seven years have passed since then. In 1997 the web was still in the novelty category, and when you talked about surfing, you were thinking about waves and sand, instead of URLs and Javascript; and when someone mentioned cookies, you immediately thought of "choc chip". To wander around the web, the Lynx browser was still widely used, not only by people who were blind or vision-impaired, but also by those who preferred a text-rich, clutter-free surfing experience. Today, it's hard to believe that there was life before the web, and it's utterly inconceivable that there will be life after it.

The Web and People with a Disability

But some things don't change: back in 1997, some sites were accessible, and some (perhaps many) weren't; today, some sites are accessible, and some (perhaps many) aren't. One thing has changed, though: back in 1997, information on designing accessible websites wasn't always easy to find, and so web developers who developed inaccessible websites could almost be forgiven; but today, they can't.

When people with a disability use the Web, they do so for exactly the same reasons as other members of the community, for example, to find information about goods and services, to pay bills, book airline tickets, and so on. People with a disability are in every way part of the population, and they are part of your client group. Show me an aspect of web development, design or content management that affects or has an impact on your customers, and I'll show you how it impacts on or affects users with a disability; there isn't a single issue or topic being discussed at this conference that does not, in various ways, have implications for users of your web pages and content who have a disability.

In the context of the web, it is customary to refer to "accessibility", and the principles of accessible web design when discussing how people with a disability can gain independent and equal access. Using these terms, I can state my basic message by saying that accessibility is part of usability, the principles of universal design are applicable to everyone, and so if you want a web page or its content to be usable by your customers, then you have to think accessibility first, accessibility second, and accessibility all the way down the line.

There is a heresy abroad that you can design a web page, manage its content, and evaluate its performance; and then, if you have time and the resources, and the wind's blowing in the right direction, you can do some accessibility testing. This view is actually much more common that you might imagine, and certainly much more common than it should be. Yet, this view makes little sense when examined logically, and, in the Australian context at any rate, it leads to conduct that is unlawful.

Disability Discrimination Act (DDA)

I want to deal with the illegality first, by providing a brief overview of the Commonwealth Disability Discrimination Act. I'll begin by explaining the role of the Human Rights and Equal Opportunity Commission, which administers that Act.

The Commission (generally referred to as "HREOC") administers a range of Commonwealth legislation dealing with human rights, including the Racial Discrimination Act, and the Sex Discrimination Act. The Commission also has responsibilities relating to the various international treaties and similar instruments in the human rights area that have been ratified by Australia. One example is the Declaration on the Rights of the Child. Each main area of responsibility within the Commission is supported by a policy unit, and I am a Policy and Project Officer within the Commission's Disability Rights Unit. The main function of our unit is to promote the objectives of the Commonwealth Disability Discrimination Act, which became law in 1992. The Disability Discrimination Act 1992 (DDA) is the key piece of Commonwealth legislation that relates to discrimination against the 20% of Australians who have a disability. Under the DDA, it is unlawful to discriminate against a person on the grounds of a disability.

The objects of the DDA include eliminating, as far as possible, discrimination against people with disabilities, and promoting recognition and acceptance that people with a disability have the same fundamental rights as the rest of the community.

The DDA uses a broad definition of "disability" that includes:

  • Physical
  • Intellectual
  • Psychiatric
  • Sensory
  • Neurological, and
  • Learning disabilities, as well as
  • Physical disfigurement, and
  • The presence in the body of disease-causing organisms.

It is worth noting, at this point, that the DDA definition of disability is broader than that used by the Australian Bureau of Statistics (ABS) in arriving at a figure for the percentage of the population that has a disability. In the context of web design and content management, the broader definition is particularly relevant. For example, people who have a temporary disability such as a broken arm will still want to be able to use the Internet, and so web pages that incorporate the principles of universal web design will benefit a much broader group than even the 20% figure that I quoted earlier.

The DDA sets out specific areas in which it is unlawful to discriminate. These areas include access to premises; accommodation; education; employment; the provision of goods, services and facilities; and the administration of Commonwealth laws and programmes. The definitions of "goods" and "services" in the DDA include financial and information services provided, for example, by banks and other financial institutions, retail shops, churches, cinemas, television stations, as well as services and equipment provided by telecommunications companies. An organisation such as a government department that provides services or information through a website is also liable for complaint under the DDA if those services are not accessible to people with a disability.

The DDA defines two kinds of discrimination: direct discrimination is when a person with a disability is treated less favourably because of that disability. An example would be if a university refused to allow a blind student to enrol, or if a shop assistant refused to serve a person because they were using a dog guide. Indirect discrimination refers to treatment that, on the face of it, is not discriminatory, but which actually has a disproportionate impact on people with a particular disability. For example, an employer might require that applicants for a particular job have a driver's license, even though the job does not involve driving. Such a requirement would indirectly discriminate against people who are blind or who have another disability that prevents them from driving a car. Providing emergency service information only in audio form may also involve indirect discrimination, as it would not be accessible to many people who are deaf or hearing-impaired. A website that requires the use of a mouse rather than a keyboard would discriminate against people who are blind and who cannot use the physical mouse.

The DDA recognises, however, that in certain circumstances, providing equitable access for people with disabilities could cause "unjustifiable hardship" for an individual or organisation providing goods or services.

Where a person with a disability believes they have been discriminated against, they can complain to the Commission, which will investigate the complaint and, where appropriate, attempt to conciliate a solution between the two parties. Where conciliation is not possible, the complainant may take their complaint to the Federal Court or Federal Magistrates Service, which have the authority to determine whether unlawful discrimination has occurred and what constitutes "unjustifiable hardship". If the court concludes that removing discrimination would cause unjustifiable hardship, then the complaint is not upheld, that is, although there may be a finding of discrimination, there is no finding of unlawful discrimination.

Unjustifiable Hardship

There are two points to keep in mind about this notion of unjustifiable hardship: firstly, it implies that removing discrimination may involve some justifiable hardship - it is not enough for an organisation defending a complaint of disability discrimination simply to say that removing discrimination will be hard. Rather, the question is when that hardship becomes unjustifiable, and the answer will depend on a number of factors that can be considered by the court. Secondly, the concept of unjustifiable hardship recognises that not all discrimination can be removed, and that the rights of people with a disability are part of a social framework whose diverse and sometimes incompatible elements must be balanced.

Having said that, it is important to note that the defence of "unjustifiable hardship" is not available where a complaint relates to the administration of Commonwealth laws and programmes. This reflects the government's view that it has a particular responsibility to promote the objectives of the DDA, and to eliminate discrimination against people with a disability. In the context of information access, this means that if a person who has a print disability lodges a complaint that alleges discrimination in the way a particular Commonwealth law or programme is administered, then the Commonwealth cannot claim unjustifiable hardship, and so if the complaint is upheld, it is obliged to take steps to eliminate the discrimination. One example of such a complaint would be in relation to an inaccessible Commonwealth government website, or the use of basically inaccessible file formats such as PDF without accessible alternatives in publishing web content.

Even in the case of non-government websites, it is hard to see how a website could succeed with a claim of unjustifiable hardship, given the considerable amount of information, training and techniques that exist for making websites accessible, and given also the ready availability of affordable technologies for achieving such accessibility.

It is also important to bear in mind that the DDA covers intranet sites as well as external sites, and that government departments, in their role as employers, need to consider the accessibility of their intranets to employees or potential employees with a disability.

It thus makes good sense to develop and implement strategies designed to minimise the risk of complaints under the DDA. Such strategies will help to ensure that websites and web content are accessible, and thus promote the objectives of the DDA.

DDA Standards

The DDA allows for the development of what are known as DDA standards, in certain specific areas, these areas being accommodation, education, employment, the administration of Commonwealth laws and programmes, transport and, most recently, access to premises. DDA standards provide much more specific information about what needs to be done to comply with the DDA in a particular area. Once a DDA standard has been promulgated, then contravening the standard amounts to a breach of the DDA itself; but, on the other hand, if an organisation is complying with a DDA standard, then they are deemed to be complying with the DDA in the area in question, and so a complaint cannot be successful. It is therefore important that DDA standards be developed with full consultation and consideration, and so far the process has been very slow - too slow, some would say. At the moment, the only DDA standard that has been promulgated is the Accessible Public Transport Standard, which came into force in October 2002. Much work has also been done on the development of an education standard, and a standard covering access to premises, and we hope that standards in both these areas will be finalised soon.

At this stage, there is no ongoing work on the development of a standard covering the administration of Commonwealth laws and programmes, including Commonwealth government websites. The Commission's view is that the development of DDA standards offers a significant and effective opportunity for the elimination of discrimination through systemic change.

It is important to bear in mind that just because there is no DDA standard for a particular area, it does not mean that the DDA does not apply. The DDA is framed in terms of discrimination, not the meeting of particular requirements. I am often asked what the DDA says about websites. The short answer is, nothing: the web did not exist when the DDA was enacted in 1992. The long answer is that the DDA covers discrimination in the provision of goods and services, regardless of how those goods and services are provided. These days, goods and services are increasingly provided via the Web, and so websites fall within its scope. This broad-brush approach can be a good thing: in the US, it is very uncertain whether websites fall within the scope of the Americans with Disabilities Act (ADA), since that Act refers to "places of public accommodation", and rulings have so far been inconsistent about whether websites constitute such places. I will return to the implications of this later, but for now, I think it is fair to say that countries such as Australia ad the UK, where disability discrimination legislation covers websites, are finding it easier to make progress in the web accessibility area.

The Commission also has a role in assisting organisations understand their responsibilities under the DDA, and supporting initiatives aimed at promoting compliance through best practice such as voluntary industry standards, guidelines, or codes of practice. While these Industry Standards have no force in law, the Commission has supported their development in the hope that they will provide a level of access consistent with the requirements of the DDA. The W3C Web Content Accessibility Guidelines 1.0 are now widely considered to represent the world best practice on web accessibility, and while they are not part of the Disability Discrimination Act, nor are they part of a DDA standard, they do provide a valuable measure of performance in the area of web accessibility. The Commission's view is that if a website does not comply with the W3C Web Content Accessibility Guidelines, then it is highly likely to discriminate against at least some people with disabilities.

The DDA and Government Websites

I want to say a few words now about the relationship between the DDA and government websites, since I understand that many of you are involved with government websites in one way or another. There have been a number of DDA complaints against Commonwealth government websites, including some whose developers or content managers may be here today. Some of these complaints relate mostly to issues of website navigation, but there is a growing number of complaints relating to the format in which content is presented on government websites. In particular, the ADobe Portable Document Format (PDF) is becoming the subject of complaints on the grounds that it is inaccessible to people who are blind or vision-impaired.

PDF Files and Accessibility

The PDF format has become widely used for making documents available on web pages. Despite considerable work done by Adobe, PDF remains a relatively inaccessible format to people who are blind or vision-impaired. Software exists to provide some access to the text of some PDF documents, but for a PDF document to be accessible to this software, it must be prepared in accordance with the guidelines that Adobe have developed. Even when these guidelines are followed (and there are 32 pages of them), the resulting document will only be accessible to those people who have the required software and the skills to use it. Many blind or vision-impaired people do not have the financial freedom to spend the $1,000+ typically required to upgrade their screen-reader software to take advantage of the latest accessibility features. Requiring a user to upgrade to this extent in order to read a standard document is like designing web content presentation in such a way that most people will have to buy a new computer in order to read it. Clearly, this is not a reasonable approach to the discharge of a government's social responsibility to provide relevant information to its citizens. in any case, some of the PDAs used by blind people have no facilities for accessing PDF files.

OK, It's time for a quiz. Not long ago I received a copy of my upcoming flight itinerary and E-ticket receipt as a PDF file. I opened it in Adobe Acrobat 6 using the latest version of my screen-reading software. I'm going to read you what I read, and then I'll be asking you some questions. Here's what I read:

"We recommend that you also retain a copy for your records. International passengers will need this information for Immigration,
Customs, Airport Security checks and Duty Free purchases. Thank you for choosing to fly with us and we hope you enjoy your trip.

Your Booking Reference Your Details
Customer Name Frequent Flyer Number
Your Itinerary
Date Flight Number Departing Arriving Status Check-In
Fare Restrictions
Your Receipt Payment Type

Fare Payment Type E-Ticket Number
Taxes/Charges Amount
GST Date Date Issued
Fare/Tax Total
Airport Levy Issued by
Total Price Total Balance
E-Ticket Itinerary, Receipt and Tax Invoice
X22ERV
Mr Bruce Maguire QF 0800006 Frequent Flyer Bronze
02 Sep 2004 QF0433 Sydney
1230
Terminal 3
Domestic
Melbourne
1400
02 Sep 2004
Terminal QF
Economy
Confirmed
Quickcheck self service
kiosks are available at
Sydney, Melbourne,
Brisbane and Canberra
domestic airports
$101.00
$25.17
$12.62
$138.79
$0.00
Mastercard
$138.79
26 Aug 2004
$138.79 AUD $138.79 AUD
081 2433853004
26 Aug 2004"
023 99541

Right: I hope you were paying attention, because here's the quiz. Question 1: Where was I going, and when? Question 2: What was the amount of GST included in the cost? Question 3: What was the total balance of my account?

When this PDF file is printed, there is a neat table with all the information set out in rows and columns so that it is easy to interpret. But I could make almost no sense of it, and I certainly wouldn't be able to rely on it if, for example, I wanted to dispute the amount of taxes I was charged, or even to find out what my E-ticket number was.

The Commission's view is that organisations who distribute content only in PDF format, and who do not also make this content available in another format such as RTF, HTML, or plain text, are liable for complaints under the DDA. Where an alternative file format is provided, care should be taken to ensure that it is the same version of the content as the PDF version, and that it is downloadable by the user as a single document, just as the PDF version is downloaded as a single file. This last point is important: sometimes we come across documents that have been coded in HTML, but each page or section or subsection is a different link, so if you want to read the entire document offline (which is what you want to do most of the time) then you have to download it in pieces, and often there are fifty or more pieces to download. This makes it very difficult to use and digest the document.

It should also be borne in mind that not all content can be made accessible online to people who are blind or vision-imaired. The use of coding strategies such as the "longdesc" tag does provide a way for web designers and content managers to make charts and other graphical information accessible, but there will still be situations where no adequate alternative exists. Organisations that need to make such pictorial content available must therefore develop strategies for making it accessible, for example, by using qualified contractors to produce tactual maps and diagrams on request. The most effective and efficient way of doing this is by incorporating accessibility issues into overall web content management.

New and Emerging Technology

An associated issue concerns the extent to which new and emerging technologies are accessible. There has, for example, been some encouraging progress made during the past few years towards some accessibility of Macromedia's Flash technology. However, at best, this accessibility is only available to users who have the latest versions of screen-access software, and to developers who use the latest version of the Flash development tools and follow strict guidelines. The value of web accessibility is now generally recognised, and so companies often use marketing and media to promote their accessibility initiatives. But, as is so often the case, "the devil is in the detail", and what might be accessible in theory is often inaccessible in practice.

The moral from this brief discussion is that web design and content management must, wherever possible, proceed on the basis of technologies that are readily available to users and that have been well-tested. These are, however, generous constraints, and there is no incompatibility between accessibility and sophisticated or attractive design. The myth that accessibility means plain vanilla text is just that - a myth.

Complaining or Explaining

In my role as a Policy Officer I have a varied life that is never dull. Some of my most interesting times are when I get phone calls from distraught web developers who have just learnt that someone is going to lodge a DDA complaint against their website. A frequent comment is" "why didn't they tell me they couldn't access the site: why did they go and lodge a complaint first?". There are several answers to this question. Firstly, the DDA does not require that a person contact a website developer before lodging a complaint. Many people with a disability may not feel confident in dealing with someone whom they believe is discriminating against them.

Secondly, even if you want to contact the right person, it isn't always easy. Recently I came across a site that used Flash in a very inaccessible way. Thinking that I would contact them and alert them to the problem, I clicked on the Contact Us link. My screen-reader told me that the resulting page was blank. Upon further investigation, I discovered that the contact information was in the form of an image of a business card. I could not access any of the contact information. Because the contact details were inaccessible, I couldn't contact them to tell them that their site was inaccessible.

Thirdly, not all developers want to know that their site is inaccessible. A couple of years ago I contacted a Christian music website. I said that I would like to buy some of their CDs, but that their site was inaccessible so I couldn't. I added that there were international web accessibility guidelines, but that their site did not comply with a single one of them. I received a reply to my email from their web developer. His opening comment was, "WOW!". The relationship went downhill from there, and they eventually told me that I was obviously "deeply troubled". "Quite right", I replied, "I'm deeply troubled that you won't fix your website". As they say in the classics, I've never heard from them again.

Finally, there is often a dense fog of bureaucracy protecting the web developer, especially if they work for a large corporation or government department. For a number of years, I have bought books and CDs from Amazon.com--in fact, I think I must have been responsible for their entire profit. Until recently I was able to use all the features of the site. However, a few months ago they made changes to the site that rendered most of the features of the Shopping Cart either completely inaccessible or very difficult to access. I first reported the problem to them almost two months ago. I told them what I suspected was causing the problem, and what they needed to do fix it. Guess what: nothing whatever has been done. Each time I send them an email I get a prompt reply from customer service thanking me for shopping at Amazon even though I have pointed out that I can no longer do so effectively), apologising for the inconvenience and assuring me that my message is important to them. I have offered to liaise directly with their web development team, but to no avail. I can't even get the contact details for Amazon's CEO so I can escalate the issue. Ultimately, there is not much more I can do, because Amazon servers aren't located in Australia and so don't come within the jurisdiction of the DDA. Needless to say, I will no longer use Amazon, and I have no doubt that their profits will tumble.

There are two conclusions we can draw from this discussion. Firstly, any business, company, organisation, or government department should ensure that their website contains clear and accessible contact information, and that someone within the organisation is assigned specific responsibility for handling feedback about accessibility issues. Second, discrimination affects ordinary people living their day-to-day lives. When a person with a disability can't access a website, it's not just a technical glitch-it's a very real and often humiliating personal reminder of just how difficult it can be living with a disability in our society. For people who are blind, the web may be the only way we can access information. For example, there was no other way I could have obtained all the information I did about Pokemons, which, in turn, had a real impact on the way I related to my son at a time in his life when father-son bonding was crucial. If that web site had been inaccessible, I could not have bought the Pokemon cards that gave my son such happiness, and for all I know, he'll remember that event for the rest of his life, and it may well have a positive effect on the way he relates to his own children in years to come. As a person who is blind, I can't simply walk into a bookshop or music store and browse the shelves, so when Amazon chooses to make some of its key features inaccessible to me, it closes off opportunities for me to do the same things that are taken for granted by the rest of the community.

It's easy to become carried away with the mysteries of Javascript, the portability of PDF, or the eye-catchiness of Flash, but if you, as web developers and managers, want to reduce the risk of DDA complaints, then you must also be mindful of the personal dimension, and realise that your site is used by ordinary people.

Next Steps

So far I've been discussing some of the current issues to with web accessibility in the Australian legal and social context. Naturally, the question arises as to where we go from here. The Commission's view is that the W3C Web Content Accessibility Guidelines have become sufficiently stable and well-authenticated for them to be considered as the benchmark for international best practice. The guidelines present three levels of compliance, of which the single-A was the first to be developed, and the minimum level of accessibility. The progress that many government departments have made in achieving single-A compliance is significant and praiseworthy; however, websites that have only reached this level of compliance will be difficult or impossible for some groups of users with a disability to access. It is important, then, to regard single-A compliance as an interim measure against which to rate the performance of government websites. Implementation of double-A and triple-A compliance will not only improve accessibility of websites, but also reduce the risk of complaints under the DDA.

The Commission's Role

For the past several years, the Commission has maintained its Web Accessibility Advisory Notes, which provide information and guidance to web developers and managers about how to meet their responsibilities under the DDA. These notes were last revised in 2002, and I will shortly be updating them again. I anticipate that new sections will be added covering such topics as web-based applications and interfaces, security and web accessibility, and anti-robot tests (where you have to copy letters into a box in order to register for a service, and which are inaccessible in this form). The Notes are on our website, and I invite you to provide feedback on the existing version and suggestions for additions or clarifications in the upcoming version.

We are also happy to work with government and industry to help them meet their responsibilities under the DDA by developing strategies aimed at improving accessibility.

Conclusion

People with a disability are not a separate segment of the population that can be left until everything else has been taken care of; similarly, providing accessible websites and content is not simply a matter of ticking some boxes on the sign-off sheet. Applying the principles of universal web design is good social policy, it promotes the objectives of the Disability Discrimination Act, and, as the Internet Industry Association have shown in the development of their Accessible Web Action Plan, it makes good economic and marketing sense. In other words, making the web and its content accessible is not a contest between web developers and people with a disability. It is a partnership whose aim is the promotion of full and independent universal access through the utilisation of the powerful technologies that are now available.

I want to finish my presentation today with a story. There was once a young girl who lived in a Persian village. She had an adventurous disposition, and she liked to explore the hills and valleys near the village. One day she ventured further than usual,, and she came upon a cave. She went into the cave, and as her eyes gradually became accustomed to the deep darkness inside, she was thrilled to see a large pearl shimmering on the floor. She bent down to pick it up, when she noticed that the pearl was clutched in the claws of a great and fierce-looking dragon. She stood still for a long time, trying to summon up the courage to fight the dragon and take the pearl. But eventually she sadly turned away,: the dragon was too terrible, and her fear too great.

Many years went by. The young girl grew older, and had many experiences. But she never forgot that wondrous pearl. She decided that before she grew too old she would go back and take a last look at the pearl. So she went all the way back that Persian village, and once again found the cave. The pearl was still there, as enticing and lustrous as ever. But as she bent down, she noticed to her astonishment that that great and terrible dragon was now just a little pussycat. so she reached out her hand, and took the pearl.

The moral of this story is that the more we live life and face its many challenges, the easier it is to confront the dragons, wherever we find them. Discrimination is a dragon that can devour those who are disadvantaged and quenches the genius and generosity of the human spirit. But this dragon, too, can be transformed into a harmless pussycat by the way we orient our actions. Whenever we design a website, or deliver information, we have a choice. We can choose to fight the dragon of discrimination, or we can allow discrimination to take an even firmer grip on society. I urge you, as you design websites, develop content, or evaluate performance, to remember that pearl: in this case, the pearl is the achievement of a just, equal and inclusive society.


Address

Australia