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Pokemons in the Amazon Jungle

Disability Disability Rights

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.