January 1, 2002

Web Site Hypocrisy

I was always quite comfortable with the ‘do as I say, not as I do’ approach with my children but I suspect that it’s not going to cut it with SCL members. So it’s fine to direct your attention to the article so prominently displayed on the front cover (Web Site Design and the Disability Discrimination Act 1995: see p16), but the temptation to be smug about it has to be resisted. The fact of the matter is that the SCL site has not followed the guidelines that are mentioned in the article and which would help to give disabled persons the benefit of the site.

Our effective exclusion of disabled persons was not a deliberate decision. If there was a meeting where designs were compared and we decided that we preferred the present design and specification over one that was user friendly for disabled persons, I must have been on holiday. The fact is that, like most designers and most of their clients, we just did not think about it. All I can say is that we will think about it now and, since some of the things that would help cannot possibly cost any money, we will do something about it.

For SCL members who are advising clients with Web sites, this useful article should put them in a ‘win/win’ situation. You can be hard-edged and point out that those*** at the RNIB might sue the pants off the recalcitrant or you can be soft and gentle and appeal to the client’s better sensibilities – either way, what is likely to make most impact is the realisation that the earlier the message is taken on board the less adaptation is going to cost.

E-mail Contracts

It is so rare that we get an article about IT or e-commerce law about which I feel capable of offering comment that I was practically dizzy when the prospect arose. Kirsten Houghton and Kate Vaughan-Neil have produced an excellent survey of the applicability of the old contract rule on postal acceptance to e-mail contracts (see p31). But while I think it is an excellent piece, I don’t actually agree with them. And while not agreeing with the views expressed in an article in the magazine is not uncommon for me (there are at least two examples this time), it is quite rare for me to know why and still rarer for me to be interested enough to want to express a view.

Essentially, Kirsten Houghton and Kate Vaughan-Neil make the case that the postal rule is not appropriate to e-mail acceptance. I, on the other hand, think that its equivalent is vital to create a fair and equitable result, at least for consumers. In the small space available, I’ll try and explain why.

I am aware that a large number of people think that e-mail is an unreliable means of communication; indeed it is not at all unusual for me to receive e-mails asking if I have received previous e-mails and one recent correspondent declared that he considered all e-mails to be undelivered unless acknowledged. Now this approach may be good practice, although it’s mightily annoying if you are doing something else and just can’t be bothered to think about what they want you to think about, but it’s an attitude of the few. Those of us who spend our time with a constant e-mail stream, or obsessively checking in the hope of a valid escape from the task in hand, tend to forget that there are others who treat e-mail very differently. We may have been in the forefront of e-commerce with our books from Amazon or our deals with lastminute.com, but the majority of those who will be concluding contracts online will not be so placed. Most people who will in the future communicate online will do so in occasional sessions. Most will turn on their computer for specific tasks. If they sent an e-mail on Thursday, it may be Saturday before they check for a response, it may not even be the following Saturday. There are still vast numbers of people who have access to a phone in working hours for strictly limited periods, and their access to a computer is still more limited.

It seems to me that the consumers in such circumstances are entitled to the protection which the revived postal rule would provide because the pattern of life which would enable them to check for receipt is unattainable: it follows that the rest of us, when acting as consumers, will get that protection too. I appreciate of course that the postal rule is not a consumer protection measure but it does have similar overtones. Moreover, without its application, the greater danger is not from the mislaid e-mail but from the extension of the rule that the contract is made at the time of receipt, namely that the contract is made at the place of receipt. That could mean that the consumer who is duped is fighting on unfamiliar territory and that is not and cannot be a good idea.

If there is room for two views on this in just this one issue, there is room for more, I’d be happy to publish more views either here or on the SCL Web site.