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Some FTSE 100 companies receive three or four complaints every week saying that their web sites are not accessible, according to a corporate forum which this month attacked the lack of guidance to accompany the UK's disability rights legislation.

The Disability Discrimination Act expects companies to take reasonable steps to make their sites accessible to the disabled. The companies in Knexus Community reckon they are doing what is necessary - but they lack the guidance that would give them certainty.

Most people have never heard of Knexus Community, despite its claim to being Europe's leading corporate business club and network. But like most exclusive clubs, it keeps a low profile, and only FTSE 100 executives get in the door.

At a Knexus forum this month, participants from member companies including American Express, Boots, Britvic Soft Drinks, BSI, ebookers, GlaxoSmithKline, Invesco, LloydsTSB, O2, Prudential, Standard Life, Telegraph Group and William Hill met to discuss web accessibility. Uncharacteristically, the forum went public with its members' views.

Knexus chairman Graeme Foux spoke to OUT-LAW after the event. He was keen to stress that neither he nor Knexus represents the voice of these members. But he approached us to convey the tenor of their concerns.

The upshot: Knexus members feel that they have taken reasonable steps to ensure that all their information can be made accessible to the disabled audience, "despite the lack of clarity in the regulations over what constitutes a fully-compliant website," according to Foux. The lack of certainty, they say, makes it impossible to gauge compliance accurately.

Foux said that the numerous complaints made to date had been dealt with by his members as and when they arose. Sometimes it was a case of making adjustments to a site; sometimes information was provided in another form. There was no suggestion from Foux that the complaints went any further. But some of the forum's comments were more surprising.

One member, described as a leading provider of business services, said: "We have provided the facility so customers that visit our web site can get our information either through a telephone number or request it in an alternative source."

The unnamed member added: "I would question whether we are going over the top to ensure that everything has to be made [available] on-line."

But the Disability Rights Commission does not consider it "over the top," according to Patrick Edwards, a spokesman for the independent statutory body that monitors the effectiveness of the UK's disability legislation.

"It's extremely doubtful that services available on the web could possibly be translated to a telephone line without some loss in fairness to disabled people," Edwards told OUT-LAW. "Web services are available 24 hours a day and have incredibly high levels of interactivity and it is unlikely that similar type services could be duplicated on a phone line."

Edwards cited a recent High Court case which confirmed that reasonable adjustments under the Disability Discrimination Act "are not about doing the minimum" but all about doing everything reasonably practical to ensure that disabled people are treated the same as non-disabled people.

"Companies holding these views on web access are acting at considerable legal risk," concluded Edwards.

But while the DRC has provided guidance in very general terms about the need for web accessibility, it stops short of making any reference to technical standards. And this is a frustration for members of Knexus.

"Someone needs to say what standard we need to meet," said Foux.

The members of the forum shared their views on their own respective current and target levels of web accessibility, making reference to the best known standards, being those of the World Wide Web Consortium's Web Accessibility Initiative: Levels A, AA and AAA.

But the DRC has refused to recommend any particular standard as a minimum, despite the evident confusion, not just among Knexus members. Many organisations believe that meeting Level A fulfils the legal obligation; others think that only Level AA is good enough.

The Disability Discrimination Act itself does not mention standards. Instead, it asks a court or tribunal to consider whether services that are offered to the public - including information services - are impossible or unreasonably difficult for a disabled person to access. If so, there is a duty to take reasonable steps to remedy that.

There is merit in keeping the legal obligation independent of technical standards; but the point from Knexus is that that obligation is impractical in isolation. Knexus accepts that one answer is to aim for maximum accessibility - which benefits everyone; but many businesses, even its Blue Chip members, cannot justify the cost of doing that.

To explain the offering of a telephone alternative to web site content, Foux drew the analogy of a single passenger booking a scheduled flight from London to New York. "It might be cheaper for the airline to charter a jet for that one passenger," he said. He said that some of his members are faced with the management of multiple web sites of thousands of pages each. The conversion of all pages on all sites to maximum accessibility would be an enormous expense.

Knexus Community is not alone in calling for the DRC to issue more practical guidance. At a meeting of the All Party Parliamentary Internet Group (APIG) in October, Tom Adams, Senior Digital Media Consultant with the e-Government Unit of the Cabinet Office, criticised the DRC for not making reference to standards. But the DRC remains convinced that it would be wrong to recommend a particular standard.

Speaking at the APIG meeting, Commissioner Michael Burton responded: "It's not about whether you meet Level A or Level AA. You could satisfy Level AA and still be in breach of the law so we don't want to mislead people."

Burton was keen to stress that the DRC does not wish to undermine the W3C guidelines. He said that "the focus should not be on guidelines; it should be on outcomes. And each organisation should set its own goals. It should regard any Level as not being objective or the whole story."

Copyright © 2004, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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