Retailers know their physical premises need to be accessible to all customers; but technology like the metaverse has revolutionised the consumer experience. Following the COVID-19 pandemic, the way we shop has changed. The Office of National Statistics notes that the percentage of online sales in the UK jumped from 18% to 37% during the pandemic. A recent survey found that in the UK, businesses lost more than GBP17 billion in sales in 2019 from disabled shoppers abandoning websites due to accessibility barriers. With the increased popularity of online shopping and new possibilities unlocked by using the metaverse to connect with consumers, you have to check if your online presence is as accessible as your physical premises, to maximise sales and customer satisfaction, and to ensure legal compliance.

Consumers are protected from disability discrimination under the Goods and Services section of the Equality Act 2010, which you may be familiar with in the context of ensuring that your shops make reasonable adjustments. But you might not have considered how this applies to your online presence. For example, as a retailer, you may be wondering:

What should be done to ensure your online user journeys are accessible, legally compliant and aligned to your company values?
“Good” accessibility is difficult to define, as this differs from person to person and disability to disability. Also, the legal obligations on the private sector differ slightly from the public sector. Those in the public sector have recently been subject to online compliance regulations, following legislation introduced in 2018 which required all public sector websites and mobile apps (with some exceptions) to meet specified accessibility standards by June 2021. Namely, to ensure websites and apps are “perceivable, operable, understandable, and robust” to meet the European accessibility standard EN 301 549 and the Web Content Accessibility Guidelines (WCAG) 2.1 to level AA. Though no deadline has been imposed on the private sector, the same principles apply and are a useful indicator for all businesses that have to comply with the Equality Act 2010.

At a high level, it’s important for retailers to comply with the duty to make reasonable adjustments. This duty arises where a provision, criterion or practice or the lack of an auxiliary aid or service, puts a disabled person at a substantial disadvantage compared with a non-disabled person. The EHRC Statutory Code of Practice (Code) on discrimination in services, which provides guidance on the detail of the Equality Act, includes various important points which companies should take into account when assessing how to comply with their reasonable adjustment duty. In particular, the Code specifies that the duty requires service providers to take positive steps to ensure that disabled people can access services. This goes beyond simply avoiding discrimination.

How does this interact with other regulatory requirements, like data protection and consumer protection?

Use of technology like the metaverse could mean a more accessible and inclusive shopping experience for many people with disabilities. But for a retailer’s online presence to be truly accessible the technology is only a starting point, and there are more active steps retailers can take across their websites, apps and metaverse presence. As a start:

• Colours are important for brand awareness, but accessibility should be considered. For example, there are certain colour combinations that are particularly difficult for colour-blind customers to read. And people with hypersensitive variation of autism often need reduced stimulation by using “cooler” colours. Retailers should also be aware that there has been a wave of recent complaints made to data protection authorities against companies using marketing techniques that use human psychology to achieve a preferred outcome, such as colouring “no” buttons green, and “yes” buttons red.
• Make sure your key legal policies are accessible by avoiding complex navigation to reach important documents like your privacy policy and terms and conditions. Ensure it can be accessed by both keyboard and mouse users in one click and that if you signpost it (eg “access here”) then the signpost should be understood by those that may otherwise face challenges to access it. Consider including a braille display or a screen magnifier. Or, have an immersive reader that reads out phrases like “sign me up.” And explain what is being signed up to – maybe with use of infographics or captioned videos.
• If a retailer’s policy is that all customer complaints must be made in writing, this may place someone with, for example, dyslexia at a substantial disadvantage in making a complaint. Here, amending the policy to permit those who struggle to use a written complaints procedure to make their complaint by telephone is likely to be a reasonable adjustment to make.
• Many organisations use tracking pixels. These are trackers embedded in websites, sponsored ads and emails which capture user data, including time spent on a website. Under the current UK data protection and privacy regime, pixels require consent where they are stored on a device or access information stored on a device. As these trackers are generally more difficult for users to spot (compared to their cookie counterparts which are better-known by users and easier to audit), it’s particularly important that their presence is highlighted to users in an easily accessible way, so people understand how their data is being used. These trackers are often used to measure the success of marketing campaigns such as email click rates. So it’s important to ensure consent is in place where necessary, so you can harness the data for analytics and to inform future marketing.

There’s always a tricky balance between providing enough comprehensive information to satisfy legal requirements and having a “sleek” user journey with as few words as possible. The Information Commissioner’s Office (ICO), responsible for upholding information rights and data privacy in the UK, has issued guidance to help companies navigate these competing requirements. The ICO suggest a layered approach, providing users with a short initial message containing all key information, and linking the user to a second layer containing a more detailed description.

A similar approach is recommended from a consumer protection perspective – dense, legalistic language buried within terms and conditions is unlikely to be readily understood. Instead, key messaging and important terms should be clearly presented, with the option for users to access further detail. Information requirements can also be satisfied through having a user-friendly FAQ page, where users can easily jump to a specific topic, for example, “How do I make a return,” hyperlinked to aid accessibility.

What should you think about when considering use of the metaverse to connect with consumers who have a disability?
Your metaverse presence should be designed, reviewed, and audited to ensure compliance with legal requirements. Novel points could arise from a consumer’s use of avatars in the metaverse: as a retailer you’ll have a greater opportunity to monitor your customers on the metaverse, including analysis of their avatars to expand their profiles. Avatars can be used by disabled people to communicate aspects of their disability, and the increased use of biometrics on the metaverse (eg how someone communicates or the way someone walks) means that retailers could suddenly be processing a substantial amount of special category data on their customers. This type of personal data merits extra protection in law given its sensitive nature and requires a secondary “lawful basis” when processing. In the context of your online consumer profiling, this is typically the data subject’s consent. Internally, retailers who may be collecting this data should work on their data protection impact assessments, to identify the risks posed by processing such sensitive data in this way and to ensure that risks are managed appropriately.

On a final note, it’s worth noting that a recent survey in the UK found that 22% of the total UK population have a disability. This means addressing accessibility gaps in consumers’ experiences is not only an opportunity to better align with your brand values; there’s also a very strong financial business case for doing so. Retailers should be aware this is not only a commercial or ethical point, but a legal one – for example, the Royal National Institute of Blind People have launched a toolkit on how to hold website owners to account and are active in bringing cases against non-compliant websites. The UK’s Equality and Human Rights Commission can also use their legal powers against offending organisations. This means that there’s not only a risk of legal action against your business, but also potential adverse publicity and reputational damage.

So – if you haven’t already – now’s the time to start considering accessibility when curating your metaverse presence, or user journeys for websites and apps.