Regulating Accessibility: Time for a New Beginning
e-Access'08: Technology for All
Date: 23/04/2008
Venue: Church House Conference Centre, Westminster, London
Article
There is an elegant correspondence between the amount of information in circulation and its accessibility which can be expressed in two formulae:
- The greater the quantity of information, the lower its cost of production;
- The lower the cost of production, the greater is the additional percentage cost of making it accessible.
Let us, for a starting point, take television. When spectrum was limited, the medium was analogue and the labour was unionised, the cost of producing television was high; so was the cost of producing accessibility services such as captioning, audio description and signing; but the percentage cost of the special services was relatively low.
Now think about the explosion of television since 1990 when satellite was introduced and project this forward to internet television: there will be no spectrum and therefore no scarcity; digital production is cheap and the price is falling; and the digital production industry is global and fluid. This has already allowed hundreds of new players into television production and transmission and this is growing. Smaller and smaller players will find a toe hold with niche products and, therefore, the smaller the player the higher the percentage cost of accessibility services.
This scenario, of course, can be extended to multi media channels and on-demand services that specialise in a high volume of spontaneous chat or in a high volume of pictures without audio. The cost to the first of sub-titling and to the second of audio description will be a very high percentage of the operation; in many cases the accessibility will cost more than the basic product.
So the central question is, do we expect multi media providers to provide a full range of accessibility services regardless of their economic capacity? Or, to put the question a different way, should information creators and publishers be excluded from the market unless they can afford to provide a comprehensive accessibility service?
There is an intuitive and a rational answer to this question. The first, the intuitive answer, is provided by the current situation of web accessibility. The figures vary according to all kinds of criteria but I think it is beyond dispute that there has never been an instance where more than 50% of an information sector has been accessible according to the regulations to which it is subject; in other words, even public sector sites, public utilities and major retailers have never, as a sector, reached 50% of minimal compliance. As the number of sites rises and as the cost of high quality audio and photography fall, that percentage is going to slide towards zero. So the intuitive answer is that insisting on 100% multimedia compliance with total accessibility is a pipe dream, even if you think that that is the ideal.
But I don't. If we want to look for a rational answer then the starting point is the way that television accessibility has been regulated. The 2003 Telecommunications Act obliged Ofcom to regulate accessibility services. It surveyed the market and set rational percentages of compliance, taking into account the "Qualifying revenue" of broadcasters; in other words, it took into account the percentage of turnover they would need to spend in order to comply. If the percentage was too high, the broadcaster was exempt.
That is a good starting principle but it does not go far enough. A second factor which we need to take into account is the purpose for which the multi media enterprise has been established. We might allow, for example, that a BBC television channel should be required to provide 100% accessibility whereas a student blog should not be so required. Between these two there are all kinds of information providers who need to be subjected to a rational principle in addition to their economic capacity. I suggest that the principle should be that the degree of accessibility required should depend on the public purpose of the information provider. We might argue that a major retailer should be under a higher obligation than a wholesale supplier of nuts and bolts.
If we accept the two basic principles of:
- economic capacity; and
- Public purpose
we can reach some kind of reasonable assessment of obligation.
This, of course, can only be a beginning. We might want to argue, in respect of both criteria, that different organisations have obligations which lie somewhere between 100% accessibility and zero. We have already granted this principle in respect of television by allowing major broadcasters to move gradually towards 100% in respect of sub titling and 10% in respect of audio description. We have also chosen, by default, to define areas of web accessibility in terms of the compatibility of a web site with assistive technology such as screen readers, even though most blind and visually impaired people don't own a screen reader. To insist that accessibility is constituted by compatibility with screen readers is to impose a very high 'accessibility tax'. Most people, thinking about major web sites run by the Government or the BBC, have not gone so far, as I think they should, to advocate server side audio to go alongside 100% sub titling.
There is a principle which directly relates both to economic capacity and public purpose and that is reach. If we are going to insist on a level of accessibility it should relate to the number of people likely to benefit. This does not simply involve producing a ball park figure for blind and visually impaired people or deaf and hearing impaired people; the evidence has to be based on actual behaviour rather than on some wild estimate of uptake.
If we combine the organisations':
- Mission
- Economic capacity; and
- Reach
we are getting closer to a rational way of understanding the relationship between the supplier and the customer requiring an accessibility service.
Now some people will object that what I am saying is an appalling breach of principle, that, in spite of the failures so far, we need to insist on the blanket principle of accessibility. I want to say that I completely understand this attitude. Life for disabled people is tough and the constant indifference and callousness to which we are daily subjected is an outrage in a society which inaccurately calls itself civilised. Subjected to this constant humiliation, it is easy, too easy, to resort to Utopian principles but I believe that this universalist approach comes up against an equally important fundamental principle which is that:
The statutory imposition of limits on individual activity must be based on evidence as well as principle.
Further, as this is a fundamental principle which ranks equally with the principle of equal participation by all citizens in society and in sharing goods and services in the public domain, the boundary between the two principles is contestable, and the means of settling the location of the boundary, given that the principles are equal, is the evidence.
There is one very serious objection to what I have just said; the creator or publisher should not be permitted to discriminate against citizens when putting information into the public domain. I think this is a sound principle but it is not co-terminal with the principle that all information in the public domain should be rendered accessible by creators and publishers. If we are prepared, in certain circumstances, to accept the accessibility argument, i.e. as we do in respect of screen reader compatibility, then we might want to accept the principle that all information in the public domain can be rendered accessible by any party as long as the return on the investment is reasonable. If it verges on the unreasonable then the author and publisher always have the power to render the accessibility themselves.
Now if this has not been the case so far, I now enter very choppy waters. We need to re-consider the post Second World war settlement between the public sector, industry and the Third Sector with respect to the enjoyment of rights by citizens.
Before discussing the high level principles, let me cite the recent example of access by disabled people to digital television.
Campaigning for web accessibility involved persuading a large number of players in a competitive market to provide accessibility features which could make lives better; but the DSO situation involved a statutory, blanket requirement which could potentially leave disabled people worse off. On that basis, it seems plausible that making digital television accessible is entirely a matter for Government. Well, it's a fine principle but if we wait for it to be recognised and implemented we will wait forever. Under the cover of higher health and education expenditure, Government is pulling out of being the monopoly guarantor of the enjoyment of rights. The first step is to pull out of monopoly supply, the second step is pulling out of monopoly financing. Quite clearly, Government, if it thought about it at all, did not think that it should be the monopoly supplier or financier of accessibility services in the digital television environment. It thought that an unspecified combination of BBC leverage and manufacturer goodwill would somehow sort everything out. Well, as we all know, it hasn't. We have spent the last three years in a Gilbert and Sullivan situation where, because everybody is responsible, nobody is.
But in spite of the misplaced optimism and the muddle, we have to concede that the post Second World War settlement is at an end; we cannot regard Government as the monopoly supplier of social goods, with business ploughing its own furrow and charities providing the so-called "icing on the cake". the Third sector is big and boastful, business is growing and Government is increasingly specialising in two areas: health and education on the one hand; and global crisis management on the other.
In the case of digital television we have a quite remarkable case; a Government legislates a uniform technology switch and, in spite of its own disability legislation, denies responsibility for universal access. At one level this is outrageous, but that is where we are. Campaigning to change this will be to little or no avail; so we have to look for an alternative solution.
Let me declare an interest. As Vice Chair of RNIB I have been involved in the move to converting us from an organisation for blind people to an organisation of blind people based on mass membership. I believe that it follows from this that an organisation with a turnover of more than £100 million per year has a responsibility, if supported by its Membership and Board, to be a participant in the public/private partnership to guarantee the enjoyment of rights. And, to that end, RNIB has invested heavily in the accessibility of digital television. The key problem has been that there is currently no robust framework for public/private partnership in this area. The public sector still regards the third sector as a push-over because it is so anxious to get its feet under Ministerial tables that it willingly provides government with consultancy for which the commercial sector would charge. on this basis government regards partnership with the third sector as" "Our ideas, your money".
This will only change if the Third Sector insists on being an equal partner; if Government wants to shed responsibility it has to transfer it rationally rather than creating vacuums. The digital television issue has demonstrated the need for a rational working relationship.
Now i come back to the underlying principles. If there ever was a principle, as opposed to a 20th Century pragmatic practice, that the public sector is a monopoly supplier and financier of the enjoyment of rights, that principle is dead. It might be argued that it should not be dead but that is where we are; and the Government has immense power to insist on its position because it is democratically elected and no Government since 1964 has won an election on a manifesto that included raising taxes.
Faced with this new situation, we need a new approach to accessibility which is:
- Proportionate
- Evidence based; and
- Economically viable.
That, however, is not the end of the matter. One of the key features of the digital information age is that production and publishing are becoming global. If regulation is too harsh in one political sphere then companies will move; in Europe, for instance, if we become too restrictive, companies will register in North Africa. This, in turn, means that regulation of content will have to shift from the country of origin to the country of consumption. This, in turn, means enormous cost shifts from publishers to ISP's and information brokers. The recent request of ISPs that the BBC should meet some of their increased costs because of traffic induced by the iPlayer was a red herring but it tells us something about the way things are going. If ISPs are to become pornography, security, virus and accessibility police, they are going to need paying through a combination of consumer and public sector revenue.
This is an important discussion because the globalisation of production and publishing will sound the death knell for accessibility unless we can forge alliances with those concerned with security, privacy, child protection and public service content in order to achieve a public stake in the way we filter and receive content.
Surveying the whole terrain, it becomes clear that if the ISP's and other information brokers are to become our gate keepers, then it is they who will be imposing obligations of all kinds on publishers. This is a debate of which we need to be deeply conscious but, in the meantime, the accessibility sector has to decide what it wants and whether it has enough evidence.
In summary, then, the old game is over. We will no longer be able to rely on national or even European regulators, to deliver accessibility from the publisher. Indeed, it is questionable whether regulators in a global market will be able to deliver any kind of accessibility. We are going to have to switch to information brokers, distributors and deliverers, working out some mechanism for imposing obligations similar to those which no doubt governments will ultimately impose for the purposes of national security and child protection. We have wasted almost twenty years waiting for each other to act and now we are entering very tough times. We need a new approach, we need to make a new start. This will not be easy but it will have to be done.