Article extracted from NUblog: Reader’s guide to Sydney Olympics accessibility complaint.

Only one legal case concerning Web accessibility is known: Maguire vs. SOCOG. A single individual was triumphant in pursuing a complaint of Web inaccessibility. His adversary: Nothing less than the Olympic movement itself, as manifested in the Sydney Organizing Committee for the Olympic Games.

This case teaches us that the legal need for accessibility is so clear-cut, and the means of achieving basic accessibility so straightforward, that even an unspeakably wealthy and powerful international organization can lose in a judicial proceeding.

Background

In Australia in June 1999, Bruce Maguire lodged a complaint with the Human Rights & Equal Opportunity Commission (HREOC) under a law called the Disability Discrimination Act. (News article.) His complaint concerned the Web site of the Sydney Organizing Committee for the Olympic Games (SOCOG), which Maguire alleged was inaccessible to him as a blind person.

According to the complaint, Maguire, unlike most blind people online, does not use a screen reader to read aloud the elements of a Web page. Instead, he uses a refreshable Braille display. But neither technology can understand and turn into voice an image that lacks a text equivalent. Nearly all Web pages online have some kind of graphics, including high-profile sites like those associated with major sporting events.

Maguire contended that significant parts of the SOCOG Web site, Olympics.com, were inaccessible to him.

On 24 August 2000, the HREOC released its decision and supported Maguire’s complaint, ordering certain access provisions to be in place on the Olympics.com site by 15 September 2000. SOCOG ignored the ruling and was subsequently fined A$20,000.

To respond to the objection that this case, having taken place “far away” in Australia, is unrelated to Web design in other nations, we would suggest examining the similarities among the Disability Discrimination Act, the Americans with Disabilities Act, and the Canadian Human Rights Act, not to mention provincial, state, and territorial human-rights codes. The legal principles of unequal treatment (“discrimination”; “unfavourable” treatment) and unjustifiable hardship (“undue” hardship or “burden”) are effectively identical in Australia, the U.S., and Canada, if not elsewhere, and the case of Maguire vs. SOCOG will inevitably come into play as precedents for legal cases worldwide.

This document

This document is a reader’s guide to the decision rendered by the Human Rights & Equal Opportunity Commission. Why? The decision, while available online, is 8,900 words long and replete with legalese. The SOCOG decision explains what is and is not attainable and blows common excuses for inaccessible Web sites out of the water.

For quick reference, here are the official documents:

• Original decision
• Decision on damages

For content creators, the lesson of this case is simple: Accessibility is easy, it is not optional, and if you keep ignoring it you may someday find yourself in court. If an organization as powerful as a national Olympic organizing committee – with effectively unlimited resources and, on the part of its paterfamilias, the International Olympic Committee, a century-long history of exclusion and inaccessibility – can lose a case like this, other cases resting on similar legal principles are likely to prevail.

Some history of the complaint

Maguire had tangled with SOCOG before on matters unrelated to the Web, and those complaints are referred to extensively in the decision. However, the crux of his complaint involved a demand that the Olympics.com site provide the following accessibility features:

1. That SOCOG include alt text on all images and imagemap links on the Web site
2. That SOCOG ensure access from the Schedule page to the Index of Sports
3. That SOCOG ensure access to the Results Tables on the Web site during the Olympic Games

Withholding information

SOCOG attempted to derail the proceedings through several means. One involved withholding information Maguire claimed he needed to understand the size and scope of the task of improving accessibility at Olympics.com.

The information Maguire asked for included:

1. a sample page in electronic format from the proposed results table on the SOCOG Web site relating to the Olympic Games
2. the current content plan for the Olympic Web site
3. the number of templates to be used
4. the details of the tools used to generate the pages of the Olympic Web site
5. calculations of certain ballpark figures

The HREOC commissioner, William Carter, stated flatly:

I pause to mention that the relevant information has never been provided nor had it been provided by the time of the hearing on 8 and 11 August 2000. By letter dated 4 August 2000, the solicitor for [SOCOG] sought relief from the need to provide the requested information on the basis that it was “highly commercially sensitive information within the knowledge of SOCOG and its contractor.” Its contractor was IBM.

Commerce takes place in a competitive system of sellers and buyers. IBM and SOCOG have outright monopolies on Sydney Olympic Web sites. There are no competitors – even licensed television networks’ Web ventures (read the NUblog Olympix special report) aren’t in the same league. There is no competition per se in the way there is competition between Ford and Toyota. While it could be argued that IBM’s competitors might steal its ideas, Maguire did not seek public release of the information, merely release to him and his lawyer. The claim of “commercially-sensitive information” is clearly false.

Later, SOCOG claimed that “ ‘the provision of the HTML source code of the Results Pages’ would not be made available because it was ‘highly commercially sensitive information.’ ” It is unclear if SOCOG or the HREOC doesn’t understand the lingo or if this was meant literally. Anyone could view the source code for the results pages once the site went live; it would become the worst-kept secret in the world. What we wouldn’t see is the underlying database programming, which in itself is not necessarily accessible or inaccessible. SOCOG’s claim could have been dismissed immediately if it was meant literally. If not, perhaps there was some kind of intention to confuse.

Further, although SOCOG advanced this “commercially sensitive” defense, HREOC stated it could have accommodated SOCOG by coming up with some means of “protect[ing] the commercial sensitivity of the information, assuming of course the information qualified for that description.”

Partial progress

Maguire filed his complaint on 7 June 1999 (15 months and eight days before the start of the Sydney 2000 Olympics). The decision notes that “on a visit to the SOCOG Web site on 17 April 2000, some changes had been made to the site since his original complaint but that in certain other respects the site remained inaccessible.”

At the hearing for this complaint, SOCOG claimed the alt-text problem had been solved “and that access to the Index of Sports from the Schedule was available and had always been available by a different route; namely, by entering the URL for each sport directly into the Web browser.”

In other words, SOCOG attempted to suggest that typing in a lengthy URL could provide equal access. SOCOG did not, however, describe any circumstances in which sighted people would have to type in full URLs.

What constitutes discrimination?

Under the Disability Discrimination Act, “It is unlawful for a person who… provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability… in the terms or conditions on which the… person provides the other person with those goods or services…; or in the manner in which the… person provides the other person with those goods or services or makes those facilities available to the other person.”

Just on the face of it, the requirement to type in URLs if you’re blind but merely click a link if you’re sighted constitutes discrimination.

“The provision of the Web site was a service relating to the provision by the respondent of information relating to the largest and most significant entertainment or recreation event in the history of this country,” the decision holds.

SOCOG attempted to claim that the site was “promotional.” As we all know, “promotional” Web sites don’t cost tens of millions of dollars and attract six billion hits over their lifespans. The HREOC didn’t buy it, fortunately: “The provision of information by the respondent via its Web site is, in the Commission’s view, a service relating to the entertainment which the respondent will provide to the world in the course of the Sydney Olympic Games.”

What is unjustifiable hardship?

In antidiscrimination laws throughout the Western world, anyone alleged to have discriminated is not required to remedy the discrimination if doing so would dramatically alter the nature of business or put the party in financial jeopardy. In other words, there is a test of reasonableness, extent, and expense when assessing disability discrimination. It is possible, therefore, for a body like the HREOC to conclude that there was disability discrimination but that the way to fix it is too complicated or expensive.

SOCOG argued that retrofitting its site for accessibility would cause unjustifiable hardship, estimating the cost at A$2.2 million.

Accessibility guidelines

World Wide Web Consortium accessibility guidelines, SOCOG maintained, were too new to graft onto Olympics.com, which had already undergone “substantial implementation.” HREOC countered that Olympics.com “is and has been in the process of continual development. Indeed it is alleged, particularly in relation to the provision of alt text, that this has been ongoing. A letter from IBM… asserts that alt text was being added to images on the SOCOG Web site and ‘expected’ that this task ‘would be completed by 8 August 2000.’ ”

Obviously, if the guidelines were truly so new and the site so substantially complete, it would not have been possible to add so many alt texts, which, the decision fails to note, have been a feature of HTML for years (since at least HTML 2.0, dating from December 1996, “based upon current practice in 1994”) and a requirement of HTML 4.0 since December 1997.

Yet Maguire and an expert witness explained that not all images had been adapted with alts, and there is no discussion of the adequacy and understandability of the alt texts.

Type-in URLs

The HREOC sided with Maguire that typing in sport-specific URLs did not constitute favourable (“equal”) treatment. As Maguire plainly put it, “that is not the way that people use Web pages.” The Commission agreed: “[T]he proposed alternative is both unorthodox and cumbersome and need not be resorted to by a sighted person.”

It must also be pointed out that the URLs in question are tongue-twisters. As examples, five sports have very long URLs differing by exactly one character. Can you guess what sport relates to each URL below?

• www.olympics.com/e.g.sports/CS/home.html
• www.olympics.com/eng/sports/CF/home.html
• www.olympics.com/eng/sports/CM/home.html
• www.olympics.com/eng/sports/CR/home.html
• www.olympics.com/eng/sports/CT/home.html

In order, the URLs relate to canoe/kayak slalom, canoe/kayak sprint, mountain biking, road cycling, and track cycling. You can’t assume some kind of acronym system at work: “Canoe/kayak slalom” and “canoe/kayak sprint” share the acronym CKS, but the URLs use CS and CF.

SOCOG, in all seriousness, advanced the manual typing-in of mile-long, hard-to-remember, confusable URLs as an accessibility measure.

Inaccessibility of the Results Table

Tables are a recurring bugbear for blind Web-surfers. Not only are tables used for page layout, but when put to use in their putative intended sense, to structure tabular data, Web authors need to add coding to make navigating the table understandable to a screen-reader or Braille user.

However, that task is quite manageable. It’s difficult to do using authoring programs like Dreamweaver, unless your site is so sprawling and enormous that you’re writing your own HTML-generating tools in the first place, as SOCOG apparently did. In that case, it’s a question of adapting the software to produce accessible code. There is no evidence that SOCOG did so.

The HREOC states flatly that “the Results Table remains and will remain inaccessible to the complainant.”

It gets worse for SOCOG:

In the Commission’s view, the respondent has discriminated against the complainant in breach of section 24 of the DDA in that the Web site does not include alt text on all images and image maps links, the Index to Sports cannot be accessed from the Schedule page and the Results Tables provided during the Games on the Web site will remain inaccessible.

And:

Because of the manner in which that information was made available, it could be accessed by a sighted person. Because of the manner which that information was made available it could not be accessed by a blind person because of his or her disability. This meant that, in respect of the same information, the respondent, in the manner in which it used its computer technology to service the needs of the public to have access to that information, made it available to sighted persons, but it made it unavailable or only partly available to a blind person because of the latter’s disability. It follows that, because of his or her disability, the blind person was treated less favourably by the respondent than the sighted person.

Degree of difficulty in providing access

SOCOG attempted to present the line of reasoning we usually encounter with corporations: Our site is too big to make accessible. Perhaps interestingly, such sites are never too big for all the other infrastructure the corporations decide is worth the money: Database back ends, professional graphic design, custom JavaScript and Java applets, expensive content-management systems.

SOCOG’s claims include:

1. The site currently consists of 6,000 pages and approximately 55,000 pages will be generated in the course of the Games.
2. There are 37 sports Web page templates each with approximately 35 result templates – in total 1,295 templates for results alone.
3. The tables of results will contain “wrapped text within cells.”
4. There will be approximately six billion hits on the site and the site needs to be fast and highly responsive.
5. To reformat the site and its contents in a way which will make the Web site accessible to the complainant will in effect require the development of a new or separate site.
6. Extensive changes to infrastructure are required; there is a requirement for specialised skills which are limited and expensive; there will be possible adverse impacts upon the support and maintenance systems.
7. One person working eight-hour business days would require 368 days to complete the task properly.
8. $2.2 million of additional infrastructure would be required to separately host the additional designs necessary to an accessible Table of Results.

Yet the Commission, based on the testimony of expert witnesses and other findings, dismissed most of SOCOG’s claims:

1. The number of templates is significantly less than 1,295 and the reformatting of the templates will take considerably less than the two hours for each alleged by the respondent. A more realistic estimate for the minor changes required is 10 minutes each; nor is there the need for unique manually-generated formats.
2. No new infrastructure will be required because it is allegedly in place.
3. A team of one experienced developer with a group of 5–10 assistants could provide an accessible site to [Web Content Accessibility Guidelines] Level A compliance in 4 weeks.
4. Wrapping in each cell can be met by using a simple device namely the inclusion of an invisible end-of-cell character which would indicate to a blind person the end of the text in each cell.
5. The cost of making the site accessible is a modest amount.
6. The number of templates has been estimated at 357 for 28 sports. Additional templates would be required for 37.

It is not clear what the HREOC means by “an invisible end-of-cell character,” unless they refer to </td> . A conversation with one of the expert witnesses previously called for the trial clarifies that the initial (mistaken) assumption was that tables would have to be linearized for Maguire to understand them, which turned out not to be the case; standard accessible table HTML would suffice.

In any event, it is manifestly clear that adding accessibility tags, while more complicated in a retrofit than it would be to add them in the first place, is not qualitatively different from adding all the other tags necessary to make a large database-driven Web site work. The fact that some of those tags might be reproduced six billion times during the course of the Olympics merely means that six billion pages will be transmitted accessibly.

And on the topic of retrofitting…

Expert testimony

Testimony from two expert witnesses was used: Tom Worthington, listed in his online bio as “a Visiting Fellow in the Department of Computer Science at the Australian National University and independent electronic business consultant,” and Jutta Treviranus of the University of Toronto Adaptive Technology Resource Centre. (Worthington has his own page about the case.)

In Ms Treviranus’ view, if accessibility had been considered by the respondent when the site was being developed it could have been totally achieved in less than one percent of the time consumed in the site’s development. She has regularly visited the site and in her view it remains inaccessible in material respects. For instance in her view in some respects the situation has worsened because additional graphic material has been added without alt text.

In respect of the Schedule page, which in her view is completely inaccessible, it could be corrected by a very simple change which would take less than 1.5 hours. Mr. Worthington expressed the view that the correction would take less time than the time which was consumed in the hearing talking about it. In Ms Treviranus’ view it would be unnecessary to uniquely and manually generate a new format in respect of the suggested 1,295 templates. No new infrastructure would be required; the existing team supplemented with some additional support for a short period would be sufficient. There would be no need to develop and implement a new navigation design. What the respondent suggested would take 25 business days could be effectively completed within a few hours.

Competing expert testimony

SOCOG approached the whole issue with such evident scorn and dismissiveness that it did not even train its own consultants enough to provide an adequate defense.

Mr. Brand and Mr. Smeal… were engaged only in the days immediately prior to the hearing commencing on 8 August 2000 [and] were required to prepare and give their evidence from positions of relative disadvantage. Their knowledge and experience with the site was necessarily very limited and the evidence of each was effectively based on the need to validate certain information and conclusions given to them by Mr. Max Judd of IBM and Dr. Ian Reinecke, the Chief Information Officer of SOCOG. Neither were able to confirm the information given to them nor were Mr. Judd nor Dr. Reinecke called to give evidence.

How’s that for kneecapping yourself?

Damning conclusions

According to the Commission:

The clear inference can be drawn from the facts and circumstances that [SOCOG] never seriously considered the issue and only when the hearing was imminent did it attempt to support its rejection of the complainant’s complaint by resort to a process which was both inadequate and unconvincing.

Among other things, SOCOG engaged in delaying tactics and then used the excuse that, even if required to do so, it would not have enough time to make Olympics.com accessible. The delaying tactics included:

1. Its failure/refusal to provide the information sought by the complainant in its letter dated 31 March 2000.
2. Its failure to provide the statements of its witnesses as directed by the Commission.
3. Its failure/refusal to reply to correspondence or to return telephone calls in the period 17 May 2000 [to] 20 June 2000.
4. Its attempt to vacate the hearing dates set for 3 and 4 July 2000.
5. Its stated intention to pursue an unmeritorious point in the Federal Court at the hearing on 3 July 2000 and its abandonment of the same just weeks later.
6. Its failure to provide statements of its expert witnesses on 4 August 2000 – less than one week prior to the adjourned hearing.
7. Its unsworn attempt to establish the truth of facts alleged by it as the basis for its claim of unjustifiable hardship on the very last date set for hearing of the matter.

We’re used to corporations attempting to bulldoze impoverished litigants by outspending them, but in this case SOCOG attempted to win the case by stalling for time. It didn’t work.

“[I]t is necessary to confirm the view that on the acceptable evidence of Mr. Worthington and Ms Treviranus there is no good reason to conclude that the sought-after access cannot be available to the complainant either by or during the course of the Sydney Olympic Games.”

Remedy

SOCOG was ordered to engage the following by 15 September 2000:

1. including alt text on all images and image map links on its Web site
2. providing access to the Index of Sports from the Schedule page
3. providing access to the Results Tables to be used on the Web site during the Sydney Olympic Games

SOCOG refused to comply with the order and was later ordered to pay Bruce Maguire $20,000 for its refusal to comply.

 

According to the decision making that cash award:

[Maguire] has persistently insisted that his disability should not be the cause of his having to accept an inferior outcome by reason of his disability. His competence at reading Braille and his application of that skill to computer technology is obviously of a high order.

Accordingly, his expectations of being able to access information from [SOCOG’s] Web site were, not surprisingly, high – certainly as high as that which a sighted person with his skills could expect. I am satisfied that the respondent from the outset was dismissive of the complainant’s concerns….

This response, I am satisfied, was very hurtful for him; the suggestion that he enlist the aid of a sighted person to assist him was wholly inconsistent with his own expectations and what he himself, unaided, had been able to achieve, both at university level and in business, in spite of his disability. To dismiss him and to continue to be dismissive of him was not only hurtful, he was also made to feel, I am satisfied, various emotions including those of anger and rejection by a significant statutory agent within the community of which he himself was a part.

In my view this element of dismissiveness in the respondent’s original response was not relieved as the inquiry process under the DDA proceeded within the Commission. In respect of this part of the complaint it apparently persisted and his original pain was somewhat aggravated by that fact….

I am comfortably satisfied that his limited access to the Web site caused him considerable feelings of hurt, humiliation and rejection. One cannot overstate the consequential effect upon him of his having to cope with the persistent need to counter what he saw as a negative, unhelpful and dismissive attitude on the part of an organisation charged with the presentation of the most notable sporting event in the history of this country. This, in my view, was aggravated by his final inability to obtain the desired access to the Web site in spite of his having established to the satisfaction of the Commission the fact that he had been unlawfully discriminated against.

The public statements of the respondent subsequent to 24 August 2000 were for him the final indignity. He… continued to feel the impact which the respondent’s earlier dismissive attitude had had upon him. This was, no doubt, aggravated by the fact that the published statement of the respondent in justification of its noncompliance included material which had been specifically rejected by the Commission….

In the Commission’s view his hurt and earlier rejection has persisted, and in spite of an apparently successful outcome he had been left with feelings of ultimate failure. It is obviously difficult for those of us not similarly disabled to share his feelings and emotions. As best one can assess, including from his presentation to the Commission, his hurtful rejection by the respondent was very considerable in his case.

Maguire told NUblog that SOCOG did indeed pay the fine, a surprising outcome – it was easy to imagine SOCOG’s simply waiting until it went out of business (nearly a year after the Sydney Olympics closed) in order to avoid payment.

Conclusions

To reiterate, in the case of Maguire vs. SOCOG, the little person won. While the Sydney Organizing Committee for the Olympic Games acted in an arguably unprofessional and certainly a dismissive manner, the allegedly substantive reasons it advanced for denying accessibility were conclusively repudiated by Australian authorities and expert witnesses.

Curiously, IBM, SOCOG’s Web contractor, maintains an accessibility Web site and a full-time staff who do nothing but work on software, hardware, and Web accessibility. IBM has a reasonably salutary record in accessibility products, having developed IBM Home Page Reader, a screen-reader analogue specialized for surfing the Web. Yet its partnership with SOCOG gave the appearance of a corrupting influence, making IBM complicit in SOCOG’s actions in denying accessibility to blind users of its Olympics.com site.

In any event, in the Maguire case we now have a firm worldwide precedent that inaccessible Web sites can be and are illegal.

I have always had trouble with people misspelling my name! The banks, schools back in good old days, libraries… Do they think that I do not know how to SPELL my name? It is JAIME not JAMIE!

Since when JAMIE has become the official way of spelling JAIME? I do not mind people misspelling it but I do mind when my cards (bank cards, membership cards etc) is being printed with the wrong name and I will have to ask them to amend it. Yes, they do amend it but I still get letters from them addressed to Ms. Jamie Wong. What is wrong with their customer database? Should it be updated in the first place and that it should be linked to all departments?

I used to dislike my name because people would conveniently address me as Mr. But I got to like it because of the romantic story between mum and dad when they chose this name. I will not go into that least I get slaughtered by mum for publicising it.

Now, I have learned to be amused by the mistaken gender people conjure out for me. I guess I will have to learn to be amused by the ‘I Know All’ whom helps me by re-spelling my name to what they think is accurate. I guess positive thinking helps.