Law, ever lagging behind the realities of our everyday lives, still has relatively little to say about the internet. It was only in 2003 that the Civil Rights Division of the Department of Justice began addressing “best practices” for the design of accessible government websites – thirteen years after the passage of the Americans with Disabilities Act (ADA), twelve after the invention of the “World Wide Web,” and eight after the founding of eBay. The same year Myspace was founded, the Department of Justice decided it would tell the rest of the government that accessibility was a thing, and they could acknowledge it or not.
Title II of the ADA applies to government entities, while Title III applies to public accommodations. Americans with Disabilities Act of 1990, 104 Stat. 327. Entities covered by Title II have generally been more proactive in making their website designs more usable, likely because the government is held to a higher standard and has fewer legal justifications for blatantly discriminating against American citizens and providing effective communication, unlike the private businesses covered by Title III. Waddell, Cythia D., “Applying the ADA to the Internet: A Web Accesibility Standard,” International Center for Disability Resources on the Internet (June 1998) . This certainly does not mean that many state and local government websites do not suffer from being inaccessible, however.
Accessible design can mean as many things as their are people with disabilities. Some common examples include making internet content usable by screen readers – programs that will read the content of screens aloud. This involves tagging images with, at most usable, highly detailed descriptions of the visual information conveyed, and when using images as links, tagging it as both an image and a link. (See Charsky, Mindy, “Web Accessibility: Is Yor Content Ready for Everyone?”. EContent (March 2015); Webusability.co.uk, “Accessibility: Guidance and the Law” (Jan. 2012); Waddell, Cythia D., “Applying the ADA to the Internet: A Web Accessibility Standard,” International Center for Disability Resources on the Internet (June 1998)). Otherwise a screen reader may simply read the image as an image, and the user could be at a complete loss of how to use the website. Ibid. Other examples are making the contrast between text and its background quite high, as to be legible to people with sight deficiencies, and adding captions to aural aspects to websites, for those with limited hearing abilities.
In 2006 The National Federation for the Blind successfully sued Target, arguing that the design of the Target website discriminated against blind users, as they could not use assistive technology, like screen readers, to access much of the information on the site or make purchases. The judge in this case held that the ADA was applicable to the Target website because Target has physical outlets, which had already been subject to ADA compliance. National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (2006). This was the first successful lawsuit in favor of internet usability (it should be noted, however, that the holding in this case is limited). The first successful lawsuit of this kind against an entirely virtual business ended in a settlement in which Netflix agreed to caption all of its content in accessible ways by 2014. National Association of the Deaf Et Al v. Netflix Inc., 869 F. Supp. 2d 196 (D Mass. 2012). Many more such cases have been decided in favor of the private entity defendant with an unusable website than for a plaintiff with a disability.
None of the cases about internet accessibility have had the force of law. (See Goren, William D., “The Internet and Title III of the ADA”, American Bar Association GPSolo eReport, Vol. 3 No. 6 (Jan. 2014).) Inability to use a website due to inaccessible design is not guaranteed standing for a plaintiff’s lawsuit. Ibid. However, the Department of Justice has been working since 2010 on a proposal for website guidelines that will bring the internet into the scope of Titles II and III of the ADA; these guidelines are anticipated to be released later this year, and may give people with disabilities a more reliable legal standing in cases of discrimination by entities using the internet, by method of poor accessibility and usability.
ADA Title III News & Insights, http://adatitleiii.com