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IN TOUCH – Who can read your mail?

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TX:Ìý 16.04.2019Ìý 2040-2100

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PRESENTER:Ìý ÌýÌýÌýÌýÌýÌýÌý PETER WHITE

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White

Good evening.Ìý Tonight:Ìý A clutch of legal problems – how you can win a case and still feel like you’ve lost it.Ìý And who’s allowed to read your post to you?Ìý

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But first, last week we reported on the concerns of some listeners that changes to the software Apple uses on its iPhones and Macs could compromise their privacy.Ìý We reported that by showing that a screen reader was being used on a website it could reveal that the person browsing was visually impaired.Ìý We had, of course, asked Apple on the programme to explain it but they didn’t make themselves available.Ìý They’d released scant information about this new feature at the time until the day after our broadcast.Ìý They then published a blog with more details.Ìý Well Ben Mustill-Rose, who talked about this last week, is here again.

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And Ben, let’s just make it clear your position, although working for the 91Èȱ¬ you’re not a journalist but you brought this to us as an ordinary user of Apple software.

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Mustill-Rose

Yeah, I wanted to make sure that everyone knew about these things that were happening, so that people could make informed decisions.

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White

So, what is Apple now saying?

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Mustill-Rose

Well this feature relates to something that they’re working on, that’s in the pipeline, relating to how accessibility’s going to be done moving forwards.Ìý And this was the first sort of roots that we’ve seen of this feature that they’re working on.Ìý And what we’ve actually learnt is that even though this feature is turned on by default that on its own doesn’t mean that it’s turned on, you have to turn another feature on in order for websites to be able to tell that you’re using a screen reader.Ìý So, I guess that the short version of that answer is that even though it’s on by default, websites can’t, at the moment, tell that you are using a screen reader.Ìý

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Now we should point out that because of recent developments, we’ve been talking about websites so far, but if we look at apps, across all the popular mobile manufacturers it is possible for app developers to tell that you are using a screen reader.Ìý This has been something that’s been possible for a long time.Ìý And there’s actually no way to turn that off.Ìý Now, of course, app developers have a choice around what they do with this information that they can get from you, so, for example, you might playing some kind of accessible game on your phone or your tablet and an app developer might use this information to say actually you’re running a screen reader, we want you to turn it off because you don’t need it.Ìý But then, equally, an app developer could include this information regarding your screen reader usage in the information that it sends back to the company that could be used to develop statistics and analytical information about the people who use the app.

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White

So, has this allayed your fears?

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Mustill-Rose

Yeah, well it’s nice to know that our devices aren’t suddenly sending this information back to Apple.Ìý But I mean I suppose one of the things that I’d be looking for is when this new feature is ready for prime time, so to speak, personally I would like it if it was communicated slightly more widely.Ìý I would always advocate for a choice; we shouldn’t assume that people are happy to give this information away for free by default.

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White

Now, listener, Robin Christopherson, and several others, felt that websites knowing screen readers were in use is a good thing because it could activate useful accessibility features on the site.Ìý Aren’t they right about that?

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Mustill-Rose

I think anything that has the possibility to increase accessibility on the internet is a good thing, yes of course, but there’s an inclusive design, which essentially means that if you build something once you should try and make it accessible to everyone.Ìý So, if you have a website or an app the idea is that you only build one version of that, that is accessible to everyone, which avoids this scenario of may be having a so-called specialist website for blind people.

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White

Ben Mustill-Rose, thank you very much for returning and explaining all that to us.

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Now, we’ve received something of a cluster of legal issues this week, beginning with the case of Yuen Har Tse.Ìý Regular listeners may remember that Yuen Har was taking Aviva to court for not providing correspondence to her in braille.Ìý She represented herself.Ìý Now the case is over but it seems to have raised more issues than its settled and Yuen Har is with us.Ìý So, how did it go?

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Tse

Well, to be honest, Peter, the day was more awful than I anticipated.Ìý I felt so intimidated, it was all so formal, lots of things you could and couldn’t do, even though you knew you had a case.Ìý

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White

But the result?

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Tse

At the end of the day, I won, apparently.Ìý So, there’s three elements I was asking for.Ìý One was the declaration that Aviva had discriminated against me by failing to make reasonable adjustments and the judge agreed, so he gave a declaration that they had discriminated against me and that was something that Aviva kept denying that they had done.Ìý Secondly, there was, what they call, compensation for damages for injury to feelings and that’s basically a sum of money.Ìý So, I got a small amount of that.Ìý And then the third thing I wanted was for him to order Aviva to fix their systems.Ìý And he didn’t do that, which is a shame.

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White

So, as you understand it, they could still send you things in print or indeed any other format other than braille which is the one you want?

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Tse

He said that they’re not supposed to do by law but he didn’t feel he could give a specific enough order that they could stick to.Ìý And because they convinced him that they had about 200 legacy systems that would be so difficult to fix everything and they couldn’t guarantee that it would never happen again.Ìý

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White

But there is another concern and that is really about the financial result of this case isn’t there.

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Tse

Yes.Ìý So, this case went through the fast track, which is a bit more complicated than the small claims and has more costs associated with it.Ìý And there’s this thing that you can do, they can make me a part 36 offer, which is something the judge is not allowed to know about and I’m not allowed to tell the judge or nobody but they made me a part 36 offer for I think it was 3400 pounds and I rejected it because there was nothing in that offer about fixing the systems or admission of discrimination.

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White

And that would be a settlement out of court?

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Tse

That would be a settlement out of court.Ìý But on the day that I refused it I got a print letter in the post, so there was no way – there was no way I could accept the offer.Ìý And the judge, of course he doesn’t know about this, and he awarded me £100 less than their offer and the rules are, I’m told, that if you get awarded less by the judge than the offer then he can order you to pay their costs, even though you’ve kind of won.

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White

So, far from being in pocket and winning your case you could be out of pocket – considerably?

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Tse

I could be – I could be.Ìý They’ve sent me a cost estimate of £32,000 and now I have to justify to the judge why I should not have to pay Aviva’s costs for him finding them in breach of the Equality Act.

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White

Let me bring in barrister Catherine Casserley, who specialises in disability rights cases with Cloisters Chambers.Ìý Now I know Catherine it’s difficult for you to talk about this specific case but what’s the legal situation relating to cost and compensation here that Yuen Har seems to have been caught up in?

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Casserley

Costs are always a difficulty I think for disabled people when considering court action.Ìý And, of course, for many disabled people when they are bringing a case, and often it’s a last resort, it’s the principle of the case and it’s not about money, it is about an admission of liability and trying to make a service provider change their practice.Ìý But there is a difficulty when an organisation makes what Yuen Har’s referred to – a part 36 offer – because the rules are that if that’s beaten in court then that does leave you liable to costs if you don’t beat that.

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White

Because there’s a kind of assumption that you needn’t have brought the case if you had an offer out of court?

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Casserley

Well yes, I mean that’s the basis of it.Ìý What I would say, I think if someone does find themselves in that position I would always seek advice because one of the things that people can do is make a counter offer that pitches perhaps their own compensation low – I mean I think one of the issues about compensation in this area is that actually in practice it is low, I think many people are quite surprised when they find out actually that your injury to feelings, when you’ve been discriminated against, isn’t actually very high.Ìý But when you do put in a counter offer what you can ask for is that that service provider changes their practice and that they admit liability, which is the equivalent of the declaration because that is your counter offer.Ìý And then if the service provider actually doesn’t accept that, they may, for example, accept the compensation element but not the admission of liability or the change of practice, then you may not be in that situation when it comes to the hearing itself.

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But the other thing that people are trying to do is to get the rules on costs to change, so that they’re more like personal injury, where the costs rules are shifted, so that you can’t enforce any costs award without the permission of the court.

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White

Let me just go back to Yuen Har, so you still don’t really know how this is all going to come out in the wash do you?

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Tse

No, I won’t know for a few weeks.

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White

Now you chose to represent yourself, yet the other party had a full legal team, that must have been a pretty tough situation to be in?

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Tse

It was, they had their barrister and solicitor in court and there was little old me and I was alright until I walked into court and faced the judge as well.Ìý And at one time the judge and the barrister were both looking through law books to remind themselves or see what the law was, which I found totally bizarre and felt really left out, it was just horrible.

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White

And Yuen Har, there was one crowning irony at the court hearing wasn’t there, explain.

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Tse

Oh yes, so, before I went through my witness statement, I had to swear an oath of truth.Ìý And the judge says oh I’ve only got this on a print card.Ìý So, I couldn’t read the oath of truth and he had to read it and I had to repeat after him.Ìý But I felt so intimidated I couldn’t say – well you know what, this is so ironic, this is a disability discrimination case and you don’t have this stuff in a format that I can read.

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White

You couldn’t make it up, could you.

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Tse

No, no.

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White

Yuen Har, thank you very much for telling us about it anyway.Ìý Aviva is not commenting on an active case.

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Catherine Casserley, you can’t go yet, because as we’ve got you here, this is another issue about the right to read.Ìý It was brought to us by Angie Garner, who called our dedicated phone line, she explained the problem to me yesterday.

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Garner

When I ask charities to read any mail, they say no because of the Data Protection Act.

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White

How often has this happened?

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Garner

The charities in question – Guide Dogs and Age UK – I would say twice in the last year, each one of them have said the same thing.

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White

And what kind of problems is this causing you?

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Garner

Well I haven’t got any family, so I’m relying on a friend who’s 85 to come in and read my mail on a regular basis.Ìý But what do you do?Ìý How do we get around this point if you can’t read it yourself?Ìý I mean the point I want to make, is this true that the Data Protection Act does mean that other people, other than very close family, are not allowed to read your mail?

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White

Well that was Angie Garner.Ìý We asked both Age UK and Guide Dogs for their reaction to this.Ìý Age UK first:

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Statement – Age UK

Age UK nationally does not offer a reading service, so we’re not able to comment on the specifics of this situation.Ìý We would generally advise that any volunteer or staff member, who has access to personal, financial and/or sensitive information as part of their role is asked to sign an additional confidentiality agreement to heighten their awareness of their responsibility to ensure that this information remains confidential.Ìý Each local Age UK is an independent charity and therefore we cannot comment on their individual policies.

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Statement – Guide Dogs

My Guide sets up a formal partnership created by Guide Dogs and we ask both volunteers and beneficiaries to respect the boundaries that are put in place to ensure a safe and effective service.Ìý These boundaries help build trusting relationships and clarify expectations for the partnership.Ìý It’s vital that neither the volunteer, not the service user, should be put in any danger or compromise as a result of their My Guide volunteering.

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Well, Catherine Casserley, listening to that, what do you make of that – are there restrictions on volunteers reading the mail of blind people?

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Casserley

The purpose of the Data Protection law is to ensure that data is processed lawfully and fairly on the basis of people’s consent and it’s intended, really, to protect people from having their data misused and to ensure that they understand what’s happening to it and that they can have access to it.Ìý I think it’s unlikely that, in my view, people who are simply reading someone’s post allowed to them are processing data for the purposes of the legislation but even if they are any concern about that should be overcome with ensuring that they have that person’s consent.Ìý So, in the circumstances if an organisation is saying that they’re unable to read, I would imagine that has more to do with the boundaries of the service and what they are and are not prepared to do than data protection concerns.

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White

Because one of the things Angie said was suddenly she was finding herself having to sign all sorts of bits of paper in a situation where in the past she would have sort of felt that this was something she just needed to say yes it’s alright for you to read my mail.Ìý Was this – can this have been the intention of any of the data legislation?

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Casserley

Well I think that the reality is that when the general data protection regulation became effective there was a lot of concern from people about – really about the obligations that they’d had along but may not have been complying with.Ìý And one of the huge issues about GDPR is that the fines that you were subject to under it increased enormously and that led to a lot of concern and also a lot of revision of policies to ensure that they were actually compliant.Ìý So, I think it may be that organisations generally had to review what they were doing and make sure that they were compliant.Ìý It seems a little excessive to me but having said that if someone’s providing a service ultimately it’s up to them what basis they provide that service on.

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White

Just one more query for you.Ìý The law states clearly, we’ve often said it on this programme, that places such as pubs and restaurants which ban dogs aren’t permitted to exclude guide dogs but we’ve been hearing from listeners who say that where a pub has a dog friendly area blind people are being told that their guide dog must also be restricted to that area and indeed that’s what some regional offices of Guide Dogs have been telling them, that this is acceptable and is a reasonable adjustment.Ìý Here’s a statement we got on this from National Guide Dogs again on this:

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Statement – Guide Dogs

Circumstances can sometimes prove exceptional but in principle having a designated dog friendly area does not necessarily mean the establishment has met its requirements or that guide dog owners should be restricted to only this type of area.

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So, Catherine, I mean as far as the Equalities Act is concerned is being restricted to one part of the pub or restaurant a reasonable accommodation do you think?

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Casserley

The way that the Equality Act works is it says that it’s unlawful for a service provider, let’s say a pub, to discriminate against someone who has a protected characteristic, let’s say someone who’s visually impaired, in a number of different ways.Ìý And one of those ways is to provide them with service on different terms and that would include saying that when you come into this pub you can only sit in a particular area.Ìý And there are different ways in which you can discriminate.Ìý Those include not making reasonable adjustments but they also include treating someone unfavourably because of something related to their disability.Ìý And that, for example, is treating someone differently because they have an assistance dog.Ìý

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One of the things that I think people forget often is that you may make arrangements for people to have their dogs in but if someone has an assistance dog then that’s different, that’s something that an individual needs because of their mobility and it’s not enough to say well you can sit in that area with all those other dogs, actually if you’re going to restrict someone’s entrance then under the Equality Act you have to be able to justify that treatment, otherwise potentially it is a form of discrimination.Ìý And it’s not just about reasonable adjustments, it’s about what’s called discrimination because of something arising as a consequence of disability, so it’s another type of discrimination potentially and it means that those pub owners will have to justify that treatment.

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White

So, perhaps you should stand your ground on that one.Ìý Catherine Casserley, thank you very much indeed.

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And that’s it for today but we would welcome your comments and queries, you can copy what Angie Garner did and call our dedicated phone line where you can leave us a voice message, they all get listened to and people end up on the air.Ìý The number 0161 8361338.Ìý You can email intouch@bbc.co.uk or click on contact us on our website from where you can also download tonight’s programme and previous editions of In Touch.Ìý From me, Peter White, producer Lee Kumutat and the team, goodbye.