Internet Accessibility

Internet Accessibility for People with Perceptual Disabilities

Introduction

We access content on the Internet mostly through web pages. As the Internet has developed, it has transformed from a text-based to a rich-media phenomenon. However, not all Canadians participate equally on the Internet. Thousands of Canadians with vision or mobility impairments cannot easily use standard computer equipment to access web content. Many websites are not compatible with the technologies and software that people with perceptual disabilities rely on to surf the net. This FAQ considers the tools and laws that are available to improve Internet accessibility in Canada.

F.A.Q.

Contents

 

What is Internet accessibility?

In 2001, Statistics Canada reported that over a million Canadians have hearing impairments and approximately 600,000 have visual impairments. “Internet accessibility” refers to the extent to which such people who have impairments (including auditory, neurological, physical, and visual impairments) can access and understand websites.

In fact, accessibility has become a mainstream concern for web developers. Even users without disabilities can appreciate the benefits of accessible designs, because they get to take advantage of sites that feature easy-to-use layouts. Accessible websites typically are accessible in many different formats, such as in print, on e-book readers, and through mobile phones. As well, these websites tend to be more user-friendly, with details like intuitive navigation systems, easy-to-read font sizes, and sharp colour contrasts.

 

What tools do people with perceptual impairments use to access the Internet?

Today's browsers offer a wide range of configurable options to tailor content to a user's preferences. How– and if – users with impairments can access the web will often depend on their browsers’ adaptation capabilities.

However, browsers generally only go so far. Some users must supplement their browsers with other technologies, called “assistive technologies.” Examples of assistive technologies include:

  1. Screen magnifiers are programs that enlarge the size of screen content. They usually have options for partial and total zoom. They can also adjust contrast, colour, font types and font sizes. Some magnifiers offer voice synthesis support, which reads the page’s content out loud. Many operating systems have built-in screen magnifiers. You can also get stand-alone magnifiers, such as those offered by AI Squared.
  2. Screen readers and Braille displays are also designed for the visually impaired. They translate on-screen content into voice or Braille output. Screen readers are software programs, while Braille displays are hardware devices. The American Foundation for the Blind maintains lists of screen readers and Braille displays.
  3. Speech-to-text programs help users input data by translating spoken words into text. Examples include Typewell, Communication Access Realtime Translation, and Dragon Naturally Speaking. Windows also comes pre-packaged with Voice Recognition software. However, these programs cannot transcribe voice inflection and they often struggle when there are multiple speakers.

 

How can web design impact online accessibility?

Assistive technologies work most effectively with websites that have accessible designs. While a poorly designed website can frustrate many users, it has especially negative consequences for users with impairments who rely on assistive technologies. For example, when confronted with an inaccessible website, a screen reader may misinterpret the content and output something to the user that does not reflect the page’s intended content. Similarly, people who use keyboards instead of mice to navigate websites often find that they cannot move through websites smoothly because the websites’ code does not specify how keyboards should move through links.

Moreover, according to a 2006 report from Statistics Canada, nearly a third of Canadians with visual impairments cannot access assistive technologies. This is partly because these tools can be prohibitively expensive for the many Canadians with disabilities. For instance, JAWS, one of the most popular screen readers, costs about $1,000. Thus, website creators have the responsibility to create websites that as many browsers and tools as possible can interpret correctly.


What standards can designers follow to create accessible websites?

Website creators can ensure their sites are accessible by following established accessibility standards. The Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) provides the web’s leading set of strategies, guidelines, and resources on how to make web pages accessible. The W3C realised its latest set of guidelines, known as the Web Content Accessibility Guidelines (WCAG) 2.0, in December 2008. It includes the following recommendations:

  • Provide text alternatives for non-text content. For instance, use the "alt" attribute in an image to describe the image’s function.
  • Provide captions and other alternatives for multimedia. For instance, provide transcripts for podcasts. Universal Subtitles provides free and open-source tools for captioning and subtitling.
  • Code sites semantically, by keeping content and formatting separate. For instance, do not use tables to control page layout. Do not use images for stylized text. Instead, use Cascading Style Sheets (CSS), which are pieces of code that allow you to control a page’s style without modifying its content. This separation of style from content improves accessibility by giving more control to browsers over presentation. This makes it easier to present content in different ways, including by assistive technologies, without losing meaning.
  • Make all functionality available from a keyboard.
  • Do not use content that causes seizures, specifically flashing content.
  • Maximize compatibility with current and future user tools. For example, do not use obsolete code, like marquees. Incorporate code that can prepare for emerging technologies, like mobile phones.

Accessibility has become such a mainstream concern among web developers that many content management systems now include accessibility functionalities.  For instance, Drupal users can install several modules that enhance accessibility: some add specialised content for screen readers, while others ensure the accessibility of HTML forms. Similarly, WordPress has an option to include alternative text to images inserted into blog posts.


What are automatic monitoring tools?

Automatic monitoring tools are pieces of software that can address most accessibility issues in much less time than it would take a developer to check a website manually for the same errors. Many site creation tools now also have built-in accessibility checks. There are also standalone tools. For instance, WAVE is a free web accessibility evaluation tool provided by WebAIM.

However, developers do still need to perform manual accessibility checks of their websites. There are some features that automatic tools cannot assess. For example, an automatic tool could check that an image has alternative text, but developers would have to check for themselves that the alternative text is an accurate representation of the image.


Does Canadian law require websites to be accessible?

While Canadian legislation and case law prohibits discrimination against people with disabilities, there is no statute in Canada that explicitly addresses online accessibility. However, this does not mean people with disabilities cannot use existing human rights law in courts or in tribunals to argue for improved accessibility online.  For instance, the Federal Court held in Jodhan v. Canada (Attorney General), 2010 FC 1197 (CanLII) that the Government of Canada must make its websites accessible to people with visual impairments. For more detail on this case, see our section on how Canadian Charter of Rights and Freedoms arguments can impact online accessibility arguments, below.

Which laws will apply in a human rights case will depend on, among other factors, the type of defendant and the province where a possible violation occurs. The Charter governs human rights obligations in the public sector, while human rights statutes apply in both the private and public sectors. These statutes include the Canadian Human Rights Act and corresponding provincial legislation. In the next sections, we consider each of these scenarios separately.


Are websites from the public sector required to be accessible?

The Canadian Charter of Rights and Freedoms , as well as human rights codes, such as the Canadian Human Rights Act., govern human rights obligations in the public sector.  These laws explicitly forbid discrimination on the basis of disability. They do not explicitly address online accessibility, but they have been used in at least one instance to argue for the increased accessibility of government websites. As well, there is nothing in these laws that would prevent complainants from using them as a basis for human rights arguments against inaccessible websites.

In 2005, after discovering that she could not use government websites because of her visual impairment, Donna Jodhan made complaints under the Canadian Human Rights Act to the Canadian Human Rights Tribunal.  She also launched a case under the Charter in the Federal Court.

In November 2010, the Court confirmed, in Jodhan v. Canada (Attorney General), 2010 FC 1197 (CanLII), that the Charter requires the Government of Canada to make websites accessible to people with visual impairments. However, in April 2011, the government filed notice that it was appealing the decision, which may change the outcome.

In the next sections, we examine the specific pieces of legislation that people affected by a public sector website’s inaccessibility can use: namely, (1) the Charter and (2) federal or provincial human rights acts.

 

Are websites from the private sector required to be accessible?

Human rights statutes govern human rights obligations in the private.. To our knowledge, no one has made an accessibility argument about a private sector website before a human rights tribunal yet, but there is nothing in the statutes that would prevent someone from arguing to apply them in this way.

These statutes can be federal, provincial or territorial, depending on your location. They include the  Canadian Human Rights Act and provincial/territorial legislation. The statutes differ between jurisdictions, but they all prohibit discrimination on the basis of disability. They prohibit discrimination in specific circumstances, such as the provision of services and access to facilities.

Under these codes, human tribunals have the power to order violators to:

  • cease the discriminatory practice and take measures to redress its practice or prevent its recurrence;
  • make available to the complainant the rights, opportunities or privileges that were denied the complainant as a result of the practice; or
  • compensate the complainant for expenses, lost wages/income, or injury to dignity, feelings or self-respect.

See our section on human rights statutes for more detail on how these laws could be used in cases about the accessibility of private sector websites.


Does the Charter require websites to be accessible?

The Canadian Charter of Rights and Freedoms governs human rights obligations in the public sector. Section 15(1) of the Charter prohibits discrimination on the basis of mental or physical disability. Section 1 of the Charter guarantees this protection within limits that are reasonable and justifiable in a free and democratic society.

The Charter applies to any actions performed by or on behalf of government actors. This covers federal, provincial and municipal laws, regulations and actions, including bodies such as colleges and school boards. The Charter applies to relationships only between governments and individuals. It does not apply to purely private entities.

Under the Charter, a court may strike down or limit the scope of a law, or it may award a remedy that it considers appropriate and just. Courts rarely do both.

People who feel that a public agency has violated their Charter rights can pursue their claims through the court system. There is extensive case law in Canada on the issue of accessibility at physical sites, but the law has only recently begun to grapple with the issue of accessibility on the Internet. In November 2010, after  a user named Donna Jodhan complained that that she could not could not use government websites because she was visually impaired, the Federal Court confirmed in Jodhan v. Canada (Attorney General), 2010 FC 1197 (CanLII) that the Charter requires the Government of Canada make its websites accessible to people with visual impairments. The court ruled that these users have the rights to “independent access to online services and dignity without physical limitations.”

At the time that Jodhan was trying to use the site to submit a job application, the government already had in place Common Look and Feel (CLF) Standards. These standards set out internally-developed accessibility guidelines for federal government websites. At trial, the government argued that the fact that these standards existed shows that the government had not discriminated against Jodhan. Most government witnesses testified that government websites were compliant with the CLF Standards and that all online content was available through other channels (such as over the phone or in person).

The court rejected these claims. First, the court found that the CLF Standards were unenforced.  Several audits, including one conducted by the government itself in December 2007, described numerous violations of the standards.

Second, the court found that the CLF Standards were obsolete.  For instance, the CLF Standards forbade developers from using scripts on accessible versions of the websites. This includes JavaScript code, often needed for running multimedia and interactive Internet applications. Yet the government provides numerous services online through scripts, including job application and census systems. As a result, people with impairments who use assistive technologies (like the ones described in a previous section) could not access these systems. In this case, Jodhan had been unable to submit her job application. 

Yet assistive technologies have developed significantly since the creation of the CLF Standards. The only thing these technologies need in order for them to navigate interactive online applications is that developers code the applications accessibly (see the section for information on accessible design for more detail).  Thus, the court held that the government should update its standards to incorporate guidelines that allow developers to use accessible scripts.

Third, the court found that information given online was not always available to users in other forms, like phone or print.

As the court noted, the government argued no Charter defences. Specifically, the government did not argue that implementing genuinely accessible standards would have been too expensive or technically difficult to be feasible.

The court concluded by ordering the government and its 106 departments and agencies to bring their websites into compliance with the Charter within 15 months of the date of judgment. The court made numerous references to the Web Content Accessibility Guidelines 2.0 (excerpts from the guidelines can be found in this FAQ’s section on accessible design), but did not provide specific guidance on how to the government could achieve web accessibility. It left that to the government’s expertise and discretion, subject only to the order that it must come into compliance. The court did grant the government one exception: its ruling does not apply to stored government historical and/or archived information in a database, which the government will have to provide in an accessible format only upon request.

In April 2011, the government filed notice that it was appealing the decision. This may change the outcome.

However, Jodhan’s legal proceedings against the government began not in the Federal Court with the Charter, but in the Canadian Human Rights Commission with the Canadian Human Rights Act. In the next section, we look more closely at how human rights codes works.


Does the Canadian Human Rights Act require websites to be accessible?

Whereas the Canadian Charter of Rights and Freedoms applies only to government entities, human rights codes prohibit discriminatory acts and behaviour in both public and private sectors. These codes include the Canadian Human Rights Act and corresponding provincial legislation.

The Act protects people from discrimination by federally-regulated employers or service providers. This includes federal departments, agencies and Crown corporations; chartered banks; airlines; television and radio stations; interprovincial communications and telephone companies; buses and railways that travel between provinces; and other federally regulated industries, such as certain mining operations.

The Act makes it a discriminatory practice to deny access or adversely differentiate services against people in the course of:

  • employment;
  • provision of goods, services, facilities and accommodation customarily available to the public; and
  • provision of commercial premises or residential accommodation.

People who feel that one of the listed entities has discriminated against them in a manner that contravenes the Act can file a complaint with the Canadian Human Rights Commission. If the Commission finds there is evidence to support the complaint, it will refer the case to the Canadian Human Rights Tribunal, which operates independently of the Commission. The Tribunal will then hold public hearings at which both sides can present their arguments and call witnesses.

Section 15 of the Act sets out some exceptions to its application, such as the “bona fide occupational requirement” (BFOR) defence. A BFOR is an employment standard considered integral to carrying out the functions of a specific job. For instance, airplane pilots must have good eyesight. For this standard to work as a defence in human rights proceedings, an employer must show that changing the standard would create an undue hardship. The Canadian Human Rights Commission provides more detail on the BFOR defence.

Unlike courts, human rights tribunals can impose flexible and detailed remedies. Courts will ordinarily impose broad remedies, leaving the details to the parties to work out, but tribunals can be much more creative and interventionist. However, tribunals cannot strike down legislation. Some examples of remedies include orders that violators:

  • cease the discriminatory practice and take measures to redress its practice or prevent its recurrence;
  • make available to the complainant the rights, opportunities or privileges that were denied the complainant as a result of the practice; or
  • compensate the complainant for expenses, lost wages/income, or injury to dignity, feelings or self-respect.

If unsatisfied with the result of a proceeding in a tribunal, a complainant can seek judicial review. This is a legal procedure in which a court reviews the tribunal’s decision. The Justice Education Society of BC has a pamphlet explaining the judicial review process.

In our section on the Charter, we talked about Donna Jodhan, whose claim succeeded in Jodhan v. Canada (Attorney General), 2010 FC 1197 (CanLII) , a Federal Court case that ordered the government to make its websites accessible to people with visual impairments. In fact, Jodhan’s case began with complaints under the Canadian Human Rights Act to the Canadian Human Rights Tribunal.  Jodhan had tried to apply online for a job with Statistics Canada.  After encountering difficulty in doing so, Jodhan filed complaints to the CHRC against three separate branches of the government on the inaccessibility of government websites for people with visual impairments. 

Jodhan filed a complaint against Statistics Canada, the department to which she had applied, in September 2005. In November 2006, the CHRC concluded that the evidence suggested Statistics Canada had failed to accommodate Jodhan’s visual impairment.  The parties had a conciliation session in April 2007, but did not reach a settlement. The CHRC has not yet rendered a decision on this complaint.

Jodhan also filed a complaint against the Treasury Board of Canada, Secretariat in September 2005, arguing the Treasury Board is the general manager responsible for setting and overseeing government policy on communications. In January 2007, the CHRC dismissed the first complaint on the grounds that the Treasury Board was not the party responsible for the alleged discriminatory acts.  

Jodhan initiated a third complaint to the CHRC, this time against the Public Service Commission of Canada (PSC), in September 2006.  PSC is the government entity responsible for implementing the accessibility standards for the online job application process. This complaint was made on the basis of discrimination and lack of accommodation on the online job application process. In February 2007, the parties had a mediation session, but did not reach a settlement. The CHRC has not yet rendered a decision on this complaint.


Do provincial human rights codes require websites to be accessible?

Whereas the Canadian Charter of Rights and Freedoms applies to government entities only, human rights codes prohibit discriminatory acts and behaviour in both public and private sectors. In the previous section, we discuss the Canadian Human Rights Act. However, each of the 10 provinces and three territories also has a human rights statute for its respective jurisdiction. Each statute recognises a disability as a prohibited ground of discrimination. The statutes typically prohibit discrimination in the course of employment, as well as in the provision of goods, services, facilities, accommodation and contracts. To our knowledge, no one has yet made an argument about online accessibility before a provincial human rights tribunal.

Human rights concerns come under provincial or territorial jurisdiction if they relate to one of the following types of organizations:

  • retail and hospitality businesses, such as a store, a restaurant, a hotel, etc.;
  • hospitals or health care providers;
  • schools, colleges or universities;
  • most manufacturers.

People who feel that one of these organisations has discriminated against them can file a complaint with their province’s human rights commission. If the commission finds there is evidence to support the complaint, it will refer the case to the province’s human rights tribunal or another adjudicator, which always operates independently of the commission. The tribunal will hold public hearings at which both sides can present their arguments and call witnesses.

Unlike courts, human rights tribunals can impose flexible and detailed remedies. Courts will ordinarily impose broad remedies, leaving the details to the parties to work out, but tribunals can be much more creative and interventionist. However, tribunals cannot strike down legislation. The various human rights codes are not identical in the remedies they can provide, but in broad terms they share with the Canadian Human Rights Act the power to order violators to:

  • cease the discriminatory practice and take measures to redress its practice or prevent its recurrence;
  • make available to the complainant the rights, opportunities or privileges that were denied the complainant as a result of the practice; or
  • compensate the complainant for expenses, lost wages/income, or injury to dignity, feelings or self-respect.

 

How does a court or tribunal determine if it has jurisdiction to hear a complaint about a website?

Most human rights case law deals with physical sites, but case law about online jurisdiction is still new. To determine if it has jurisdiction over a physical site, a court or tribunal looks primarily at the physical site’s location. In contrast, locating a website can be complicated: it may operate on a host server in one place, have administrators who live in another place, and target users from elsewhere.

To determine jurisdiction, a court first looks to whether the parties have agreed to resolve disputes in a particular jurisdiction.  Often, the terms of use for a website specify that you agree to submit any dispute to a court or tribunal in a particular location.  Courts will rarely interfere with contractually chosen forums.

If the parties have not already agreed upon the jurisdiction, in order for a court or tribunal to assume jurisdiction over a foreign defendant (i.e. someone who is not in their immediate jurisdiction), the court or tribunal must be satisfied that a “real and substantial connection” exists between the complaint and the forum (i.e. the court or tribunal hearing the complaint). There are different tests for determining this connection, depending on where in Canada you are.

Courts in Québec determine jurisdiction by referring to the Civil Code of Québec.  Article 3134 contains this general rule: “In the absence of any special provision, the Québec authorities have jurisdiction when the defendant is domiciled in Québec.”

Article 3148 of the Code gives further direction on how a court would determine jurisdiction, which may apply in a case involving online content. This Article states that a Québec authority has  jurisdiction where:

  1. the defendant is a resident of Québec;
  2. the defendant is not resident in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec;
  3. damage was suffered in Québec, or one of the obligations arising from a contract was to be performed in Québec;
  4. the parties have agreed to submit their dispute to a Québec’s authority; or
  5. the defendant submits to Québec’s jurisdiction.

In other provinces, courts turn to the common law criteria for a real and substantial connection.  A leading test is set out in Van Breda v. Village Resorts Limited, 2010 ONCA 232 (CanLII):

  1. Is there a presumption that a real and substantial connection exists between the claim and the forum?
  2. If there is such a presumption, the defendant must show that a real and substantial connection does not exist. If there is no such presumption, then the plaintiff must show that there is a real and substantial connection test.  In either instance, we have to examine:
    1. If the plaintiff’s claim is connected to the forum,
    2. If the defendant is connected to the forum, and
    3. Whether it would be fair for the court to assume or reject jurisdiction

Muscutt v. Courcelles, 2002 CanLII 44957 (ON CA) also sets out some factors that courts can consider when deciding these issues:

  • the involvement of other parties to the suit;
  • the court's willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
  • whether the case is interprovincial or international in nature; and
  • comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

Note that this is not a fixed formula. No one of these factors is determinative. Rather, courts should weigh all relevant factors together.

In short, Canadian courts are still working out how to apply these factors to websites. However, it is likely that, at a minimum, any website targeting and directed at users in a particular jurisdiction would create a real and substantial connection between that jurisdiction and claims by users in that jurisdiction.


Can the CRTC compel websites to incorporate accessibility standards?

Generally, no.  The Canadian Radio-television and Telecommunications Commission (CRTC) mandates accessibility standards only for broadcasting and telecommunications. It is authorised to do so by the Telecommunications Act and the Broadcasting Act. It does not have the authority to regulate accessibility on the Internet, except in the case of the websites of telecommunications and broadcasting companies.

The Telecommunications Act states that no Canadian telecommunications carrier may “unjustly discriminate or […] subject any person to an undue or unreasonable disadvantage” in the provision of telecommunications services (section 27). It also states that Canadian telecommunications policy should “respond to the economic and social requirements of users” and “facilitate the development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions” (section 7).

Additionally, the Broadcasting Act states that “[radio and television] programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available” (section 3) and that Canadian broadcasting should “be readily adaptable to scientific and technological change” (section 5). This suggests the CRTC is interested in ensuring accessibility in broadcasting, but also in encouraging the development of new technologies that can make broadcasting more accessible. Thus, for instance, the CRTC has made it a condition of broadcast licenses that broadcasters provide significant portions of their content with closed captioning. 

More broadly, section 3 of the Broadcasting Act also states that Canadian broadcasting should “serve the needs and interests, and reflect the circumstances and aspirations of Canadian men, women and children, including equal rights” and that it should “safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.”

However, the CRTC’s mandate covers only programs, which the Broadcasting Act states does not include “visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text” (section 2). Thus, web pages generally fall outside the CRTC’s mandate.

As well, in December 1999 the CRTC released an “Exemption order for new media broadcasting undertakings.” This order “exempts from regulation, without terms or conditions, all new media broadcasting undertakings that operate in whole or in part in Canada.” The order defines “new media broadcasting undertakings” as “undertakings that provide broadcasting services delivered and accessed over the Internet.” In other words, with the advent of increasing communications online, the CRTC declared that it would not seek to regulate online content. In June 2009, the CRTC released “Broadcasting Regulatory Policy CRTC 2009-329,” in which it announced it will continue to exempt new media broadcasting services from regulation and would monitor evolving online trends.

However, the CRTC does regulate the accessibility of telecommunication and broadcasting companies websites. In July 2009, the CRTC released a Regulatory Policy on “Accessibility of telecommunications and broadcasting services,” in which it issued regulations for the websites of telecommunication and broadcasting companies. The Policy states:

“The Commission [CRTC] considers it important that persons with disabilities have access to information on disability-specific products and services as well as general information that would improve access to telecommunications and broadcasting services and products available to all customers [...] The Commission notes that service providers offer customer service through various channels. However, the Commission considers that websites and general call centres are particularly important sources of information and customer service.”

Accordingly, the CRTC encouraged companies to adopt the Web Content Accessibility Guidelines, which are the web’s leading set of strategies, guidelines, and resources on how to make web pages accessible, provided by the World Wide Web Consortium (W3C). (Excerpts from these guidelines can be found in this FAQ’s section on accessible design.) The Policy also encourages companies to conduct user testing in order to make the customer service portions of their websites as accessible as possible for users with disabilities.

The Policy gives telecommunication and broadcasting companies until 23 July 2012 to make the information about services and products on their websites accessible to the point of providing a reasonable accommodation for persons with disabilities. The CRTC gave the following examples of “reasonable accommodations:”

  • All textual content meets the W3C Guidelines, along with all new content. Existing audio-visual content that does not comply with the Guidelines should be described and accessible in another manner.
  • A website that satisfies the W3C Guidelines, where the only exceptions are linked to guidelines not commonly supported by older web browsers, or that offer equivalent or better accessibility through other means.
  • Maximum W3C Guidelines compliance, where persons with disabilities can obtain information on telecommunications and broadcasting services and products through the website. (Any inaccessibility would relate, for example, to a marketing factor or an application that is not relevant to customer service).
  • A text only version of the website, easily accessed from the home page, that complies with W3C Guidelines and provides information on services and products.
  • All high volume portions of a website meet the W3C Guidelines, with action plans to make further accessibility improvements at the earliest opportunity.

To meet those requirements, the CRTC indicated it could undertake audits of company websites by using available online tools and doing manual checks on a representative number of web pages.

Further, the CRTC stated that, where customer service functions on websites are not accessible, persons with disabilities must not incur a charge or otherwise be disadvantaged if they use different channels of customer service to access those functions.


Are there accessibility requirements to register a dot-ca site?

The Canadian Internet Registry Authority (CIRA) maintains the registry of dot-ca domain names. According to its Registrant Agreement, registrants must not “unlawfully discriminate or contribute to the unlawful discrimination” of any other person through the use of their domain name. Interpreted broadly, this clause could require that websites registered in the dot-ca domain be accessible. A failure to be accessible could amount to unlawful discrimination, as it would distinguish between individuals on the basis of a physical disability contrary to human rights legislation and the Charter. However, it would be difficult for web site visitors, who are third parties to the contractual relationship between CIRA and registrants of web sites, to compel CIRA to enforce a term against registrants.

In practical terms, CIRA governs only dot-ca, which is one of hundreds of country code top level domains, besides still other top level domains, such as dot-com, dot-net and dot-org. If CIRA were to contractually enforce a level of accessibility, the likely result is that registrants would leave the dot-ca domain in favour of one with fewer restrictions, especially if the costs of transferring were less than the cost of compliance.


Does U.S. law require websites to be accessible?

In the US, Section 508 of the Rehabilitation Act requires federal agencies to make their electronic and information technology accessible to people with disabilities. Thus, section 508 impacts not only the federal government and providers, but also suppliers of electronic and information technology goods and services to the federal government.

Meanwhile, the Americans with Disabilities Act (ADA) prohibits private entities from discriminating against people on the basis of disability in the equal enjoyment of the goods and services of a place of public accommodation. The definition of “place of public accommodation” is broad enough that it can capture many websites, since it already includes places of exhibition and sales or services establishments, among others. However, most courts have steered clear of such an expansive definition of the ADA. For instance, the District Court ruled in Access Now v. Southwest Airlines 227 F.Supp.2d 1312 (S.D. Fla. 2002) that the ADA only applies to physical structures and thus cannot govern cyberspace.

On the other hand, in 2006, in National Federation of the Blind vs. Target, the Federal District Court held that even though “a place of public accommodation” is a physical place, plaintiffs can allege unequal access to a service of that place if they can show there is a sufficient nexus between the website and the physical place. While the NFB and Target chose to settle, this judgment suggests that a new trend in US jurisprudence may emerge in this area. The court did not address whether or not the ADA applies to websites without physical counterparts.

In July 2010, the US Department of Justice issued advance notice of proposed rulemaking on “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations.” It stated it is considering revising the ADA in order to establish specific requirements for websites to be accessible to people with disabilities, including express adoption of WCAG standards. The proposals were open to comment till January 2011. The DOJ has scheduled the release of the new rules for January 2012.

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This page last updated: May 17, 2012