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IN TOUCH – Where’s my pizza?

TX:Ìý 13.08.2019Ìý 2040-2100

PRESENTER:Ìý ÌýÌýÌýÌýÌýÌýÌý PETER WHITE

PRODUCER:Ìý ÌýÌýÌýÌýÌýÌýÌýÌýÌý LEE KUMUTAT

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White

Good evening.Ìý Tonight, the blind man whose yen for a pizza could go all the way to the US Supreme Court and calls into question some of the basic assumptions underpinning disability anti-discrimination law.Ìý Guillermo Robles took the pizza company, Domino’s, to court because he claimed he was unable to access their website and app to order his meal of choice, using the software that reads the screen allowed to him.Ìý He also claimed he was unable to take advantage of their discounts and build his own pizza.Ìý But Domino’s argues that the Americans with Disabilities Act – the ADA – pre-dates the introduction of websites, it was passed in 1990, and that in any case making its website accessible would place an undue burden on the company.

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Guillermo lost his case, then won on appeal in a federal court.Ìý But now Domino’s pizza says that because lower courts can’t agree on the online responsibilities of companies the US Supreme Court must step in with some clear rules.

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So, just how significant is this case, not just in the States but here too?

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Ephrat Livni is an attorney and journalist who’s been writing about it.Ìý I asked her what she thought were the main issues.

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Livni

I think the fundamental issue is whether or not online spaces can be the equivalent of physical places.Ìý Because the ADA was written with only physical locations in mind there is a fair argument that the accessibility demanded in the ADA doesn’t apply to the internet.Ìý But if you’re realistic about the world we live in it seems facetious to argue that online space isn’t real space because obviously the difference between the web and real life is increasingly getting difficult to see, like there’s almost no difference, we interact online and in real life and the two affect each other.

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White

But surely even if that were the case and it was decided that it did have to be a physical location, Domino’s has shops and restaurants, so therefore wouldn’t they still be considered a public place with responsibilities to be accessible?

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Livni

So, that’s exactly what the appeals court found.Ìý But what’s interesting is that there are different appellate circuits in the country that have found that all online spaces are equivalent to physical places and there are those that have said it just simply doesn’t apply.Ìý And in the case of Domino’s it was because they also had physical locations that they were then responsible equally online and on the app.Ìý And so, it just means that then they’re supposedly being punished for the fact of having physical locations but if they existed purely on the internet they wouldn’t have to be accessible, which doesn’t totally make sense as a decision.

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White

I mean how much are they saying it would cost them to change this?

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Livni

In their petition to the Supreme Court they did not say specifically what it would cost them.Ìý They cited one supermarket chain that I believe said something like $250,000 to update its site.Ìý Then there’s also the issue of ongoing costs.Ìý I mean one thing that is interesting is that unlike physical places the web is constantly changing, so it’s not like you build a wheelchair ramp, you’re done, you’ve met the requirements of the ADA, this would be a whole continual process.Ìý Now whether or not that’s a fair way to view it or does that matter is a different question.

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White

They’re a big company though, they’re quite rich, their most recent annual profits were over £60 million for the year.

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Livni

Is that a question?

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White

Yeah, that’s a question.

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Livni

Look, I have no doubt that Domino’s can afford to make the necessary changes.Ìý I think an argument that often works in the States is that there is a possibility – and I don’t know if this is actually true – but there’s a possibility that this would sort of chill business, right, because it would deter people from creating new businesses online theoretically and it would drive businesses that already exist online to either limit their services or stop being online altogether.Ìý So, that is maybe the most compelling argument in terms of the American mindset, which is would having these requirements ultimately chill business online.

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White

Businesses have come out to support Domino’s, like I think the Chamber of Commerce, the Restaurant Law Center, the National Retail Federation – they’ve all submitted friend of the court briefs in support of the pizza company.Ìý Is there actually an appetite now among businesses to support disability, anti-discrimination legislation?

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Livni

It’s a pretty tricky position to take, it’s kind of bad for business to be anti-disability, right, I mean it’s not a really good look for them and I do sense in the petition that they’re simultaneously casting doubt on the sincerity of the plaintiff and like his actual need and at the same time trying to seem like – we’re only asking the court to answer our question because businesses and the disabled will benefit from clarity and that clarity should come from the court in terms of saying who now decides what the standards are and what happens next, nobody can really argue we don’t care about the disabled.

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White

Well listening to that in Maryland Baltimore is Chris Danielsen from the National Federation of the Blind which has fought and won a number of discrimination cases against company websites.Ìý Chris, why do you think this is happening right now?

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Danielsen

Well I think Domino’s doesn’t like the fact that it lost in the nine-circuit court of appeals and so that’s one reason that it’s appealing.Ìý I think the other reason is that there has been an uptake in lawsuits that are claiming that websites are inaccessible.Ìý We can debate the reasons for that but…

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White

Chris, let’s debate it.Ìý Why do you think it’s gone up?

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Danielsen

Well we think it’s gone up in part because there are so many websites.Ìý I think I read one estimate that says something like 380 websites go online every hour.Ìý Look, we all do business online, as Ephrat pointed out, and there are tonnes of websites to do everything that you need to do.Ìý And blind people and people with disabilities need to do all of the same things that other people need to do.Ìý And when we can’t access websites, really the only way that the ADA allows us to bring that to a company’s attention, if they won’t listen to a letter or a phone call, is to bring a lawsuit.Ìý So, that’s part of the reason.Ìý There are also some lawyers and plaintiffs who are behaving irresponsibly and what they’re doing is filing a bunch of lawsuits at one time against a category of business.Ìý So, for example, they’ll take an alphabetical listing of art galleries and they’ll just file a lawsuit against each of them.Ìý And that’s unethical and it’s unhelpful because what happens is the business very quickly settles a lawsuit for money and so even if there were legitimate accessibility issues they don’t get resolved, basically what happens is the companies pay the plaintiff to go away.

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White

Doesn’t that rather justify the fact that there has got to be clarity about it?

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Danielsen

Well we would argue there is clarity.Ìý If you believe in the 21st century, as a business, that your website can be a place where you can freely discriminate against people with disabilities then you’re just not thinking realistically, as Ephrat pointed out.Ìý Accessibility is not a mystery.Ìý Most people agree that the web content accessibility guidelines, that are put out by the World Wide Web consortium, are a pretty good set of standards to follow for web accessibility.Ìý There are some other guidelines, for example Apple and Android both have guidelines for their apps because apps are in some ways different from websites but those are out there too.Ìý And so, I don’t really buy this argument that website accessibility and app accessibility are this big mystery that we don’t understand, we don’t really know how to do this.

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White

But in this particular case, there were other ways for Guillermo Robles to order his pizza, he could have called them, for instance, do you not have some sympathy with Domino’s over that?

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Danielsen

Well no and here’s why I don’t.Ìý I mean I don’t know what the situation is in the Domino’s case in particular but I will tell you this, the common experience of people with disabilities is that when we call a phone number for a service like that we say, okay, I’d like to order this pizza and I’d like to get this deal that you have where I get 10% off the pizza if I use this promo code.Ìý And we’re told, okay well that deal only applies online and since you’re calling us we can’t give you that deal.Ìý Sometimes blind people are charged a convenience fee for accessing a phoneline rather than using the website and of course we all know that when we call phonelines now we are routinely told, while we’re on hold, you could get what you’re after faster if you would just use our website.Ìý So, I mean I have very little sympathy when companies claim – oh well we allow other ways to do this.Ìý So, really the fact that you can’t access our website is not a problem.

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White

Are you therefore worried that opinion perhaps is hardening on these issues and that maybe they’re being taken less seriously by business?

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Danielsen

Business hasn’t taken this seriously for a long time or a lot of business hasn’t and that’s why they’re in the situation they’re in because a lot of times when they talk about cost, what they’re really talking about is cost of retro-fitting the website to make it accessible.Ìý That wouldn’t be a cost they’d have to concur if they had built the website to be accessible in the first place and also put in place policies and procedures, because we do recognise that websites change, but if you have policies and procedures and if you have accountability within your organisation then you can check for accessibility as you’re building out new features and as you’re changing things, so that you don’t roll out inaccessible content.

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White

In 2010, the United States Department of Justice said it would look at some rules, seven years later it dropped it.Ìý Shouldn’t there be definitive rules and isn’t there an argument that going to the Supreme Court might be a good thing – get it sorted?

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Danielsen

Well, what’s funny is that when the justice department was proposing rules a lot of businesses were complaining about that and saying – oh, don’t regulate the internet, gosh if you issue a set of rules then you’re freezing the internet at a moment in time and as technology changes those rules won’t apply anymore and we won’t be able to continue to innovate in the internet space.Ìý Now what the justice department has done, de facto, is said – okay, we’re not going to set a standard and that theoretically gives businesses a lot of flexibility in how they’re going to meet accessibility requirements and leaves them free to innovate.

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White

Let me just go back to Ephrat Livni to ask you what happens next, what happens if the Supreme Court doesn’t take the case, for example?

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Livni

Oh, so there’s a chance that the court would decline to take the case, they take very few petitions for review.Ìý So, there’s a chance that actually nothing in particular happens.Ìý But because it’s a big deal for business I do think that this is an intriguing case from the court’s perspective and there is a chance that they will accept it.

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White

So, do you have any sympathy with Domino’s in this case?

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Livni

I do to the extent that I understand that businesses struggle with this, like I know that the website that I work for, it’s like we do discuss like how to describe a photograph so that it’s understandable via a screen reader.Ìý So, I know that it’s a concern and I know that people worry about how to do it, so to the extent that they are genuinely concerned about doing the right thing, I guess I’m sympathetic.Ìý I think their position is very difficult to be sympathetic with though and also given, like you said, I mean they do have a lot of money to the extent that it would affect businesses that have less money, maybe that’s fair.

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Danielsen

If I could just add to that briefly Peter.Ìý They’re only being asked to alter, as I understand it, this custom pizza ordering and maybe this pizza tracking thing.Ìý They’ve probably – I mean I’m speculating here – but they’ve probably already spent more in attorneys’ fees then they would actually need to spend to fix what they were asked to fix.

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Livni

Although, if I may say, the technical, like the details of what Domino’s has done, in this case, that is less important, it’s the question of what then does the ADA mean on the internet and how do businesses comply with it in full.Ìý So, yeah, Domino’s could probably make a fix pretty quick, pretty cheap and be done with it but the questions presented by the case are widely relevant, far beyond this one custom order pizza.

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White

Lawyer and writer Ephrat Livni and you also heard Chris Danielsen from the US National Federation of the Blind.

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So, could that happen here?Ìý Well that’s the question I put to solicitor Sean Humber.Ìý He works for the firm Leigh Day, which specialises in disability and human rights issues.

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Humber

We’ve had the Equality Act since 2010, before that the Disability Discrimination Act and these say you can’t discriminate in relation to provision of services, you are required to make reasonable adjustments.

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White

But people here are still complaining about websites being inaccessible so how successful has our law been in defining what a website should do?

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Humber

I think the law is there and protects people and I think – it’s not that there aren’t problems – I think it’s the general difficulty in people bringing legal cases.Ìý It’s actually very difficult to bring a discrimination case because even if you have nice lawyers willing to act for you on a no win, no fee, there’s always the issue of being exposed to the other side’s costs if you’re unsuccessful and the government knows that and I would say, very cynically, allows that to persist to stop people bringing cases.Ìý So, the law is there, the problem is there but it’s actually very difficult to bring legal cases.

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White

So, those words – reasonable accommodation – which says you must provide an equivalent service, does that still provide British companies with a bit of a get out?

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Humber

I think these issues need to be tested in the courts, to be honest, and in any individual case the court will look at what a reasonable adjustment means.Ìý I think in cases of these large organisations with deep pockets and whose activities are increasingly driven through the internet I don’t think it will be possible for them to argue well there’s another way of doing that that may be more difficult and provides a kind of a lesser standard.Ìý So, I think that they’re not going to get much change from the courts in trying to get out of making their websites accessible.Ìý My particular plea would be for the Equalities and Human Rights Commission, who are the enforcement body, if you like, to make sure that disability rights are enforced, bring their own action, they have the right to do that, and they bring their own action when large organisations have totally unsatisfactory websites and are doing nothing about it.Ìý They can investigate, they can serve notices and if the organisation still doesn’t comply then they can go to court and take action against them and the organisation can then face fines.

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I think ultimately, Domino’s will lose this action and I think it will be clear that actually service provision includes internet services.Ìý But I think the important point to remember is that then what needs to happen is the court needs to look at the requirements on these organisations to provide these services and then if they want to raise issues about – well, do you know what, we can’t and whatever – then that can be scrutinised and there is an obligation to make reasonable adjustments and frankly all too often organisations just don’t look at this and right at the end they go – ooh it’s all too difficult – but it’s absolutely clear that one it’s not all too difficult but they’ve never even looked at it.

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White

Sean Humber.

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Your views and website experiences please.Ìý We’d also like to hear from you about a couple of programmes we’re planning.Ìý We’re going to be talking to a range of visually impaired people about the times when they feel their control over a situation is lost, just because they can’t see properly.

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You can call our direct line with your message, please leave a phone number of email address if you want us to get back to you, on 0161 836 1338.Ìý You can email intouch@bbc.co.uk or go to our website, that’s bbc.co.uk/intouch.

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That’s it, from me, Peter White, producer Lee Kumutat and the team, goodbye.