Discord Digital Accessibiity Settlement Agreement

Congratulations to Discord! Posted here is the digital accessibility settlement agreement the company reached with the American Council of the Blind. The agreement is designed to ensure that Discord’s public-facing website and mobile application are available to people with and without disabilities.Discord will use the Web Content Accessibility Guidelines 2.1 AA and the Authoring Tool Accessibility Guidelines 2.0 (ATAG) as part of its accessibility program.

Discord participated in Structured Negotiation — no lawsuit was needed or filed.The Law Office of Lainey Feingold and Washington, D.C. civil rights lawyer Matt Handley of Handley Farah & Anderson were the lawyers for ACB in the negotiation.

Read Discord accessibility press release announcing its new initiative

SETTLEMENT AGREEMENT

This Settlement Agreement (“Agreement”) and the related and incorporated document entitled Confidential Addendum to Settlement Agreement (collectively referred to as the “Full Agreement”) are entered into by and between the American Council of the Blind (“Claimant”) and Discord, Inc. (“Discord”). Together Claimant and Discord are referred to as the Parties.

RECITALS

This Agreement is based on the following facts:

Claimant American Council of the Blind is a national organization of blind, visually impaired and sighted individuals whose purpose is to work toward independence, security, equality of opportunity, and improved quality of life for all blind and visually impaired people.
Discord is a personal communications service that offers messaging, voice, and video functionality. Discord maintains a website (at www.discord.com) and offers web and mobile applications to its users.
In October 2019, the Parties began discussing accessibility enhancements on Discord’s on-line platforms. Since that time, the Parties have worked together in good faith to resolve those issues.
The Parties enter into this Agreement to resolve Claimant’s concerns and to avoid the burden, expense, and risk of litigation. In entering into this Agreement, Discord does not admit, and specifically denies, that it has violated or failed to comply with any provisions of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (“ADA”), the implementing regulations of Title III of the ADA, 24 C.F.R. Part 36, the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), the implementing regulations of the CVAA, and any applicable laws of any state relating to accessibility for persons with disabilities, any regulations or guidelines promulgated pursuant to those statutes, or any other applicable laws, regulations, or legal requirements. Neither this Agreement, nor any of its Exhibits, Addenda, terms or provisions, nor any of the negotiations connected with it, shall be construed as an admission or concession by Discord of any such violation or failure to comply with any applicable law. Neither this Agreement and its terms and provisions, including these Recitals, nor the Confidential Addendum shall be offered or received as evidence for any purpose whatsoever against Discord in any action or proceeding, other than a proceeding to enforce the terms of the Full Agreement.

NOW, THEREFORE, the Parties agree as follows:

1. Definitions

As used in the Full Agreement, the following terms mean:

Access Standard: The standard for web accessibility is defined as Web Content Accessibility Guidelines (“WCAG”) 2.1 Conformance Level AA, as further outlined in Section 3.1 of this Agreement.
Accessible PDF: A PDF document that satisfies International Standards Organization (ISO) 14289, also known as PDF/UA (PDF/Universal Accessibility) standard.
Claimants’ Counsel: Handley Farah & Anderson PLLC, The Law Office of Lainey Feingold, and the attorneys practicing law therein.
Effective Date: July 1, 2021.
Discord Application(s) (or “Discord App(s)”): Web application for Linux and Windows users and mobile applications for iOS and Android smartphones and tablets published by Discord for its customers and the general public.
Discord Website: The website (including pages only available to Discord members) at Discord.com.
Person(s) with a Visual Impairment: Any person who has a physical, mental or sensory impairment that substantially limits him or her in the major life activity of seeing.
Third-Party Vendor: A third party who enters into a written contract with Discord after August 1, 2021 to perform paid services for its services on Discord’s Website or Apps.
Third-Party Content means content, other than User-Generated Content, that is generated by a third party and not created or controlled by Discord.
User-Generated Content means content on Discord’s on-line platforms that is generated by Discord members and users and not created by Discord.

2. Duration of Agreement

The terms of the Full Agreement shall remain in effect from the Effective Date through December 31, 2022.

3. Accessibility Provisions

3.1

Discord will use reasonable efforts to ensure that the Discord Website and Apps conform to the Web Content Accessibility Guidelines (“WCAG”) 2.1 Conformance Level AA by or before July 1, 2022. The Parties acknowledge that some WCAG 2.1 Conformance Level AA Success Criteria address features or design elements that may not be used on the Discord Website or Apps, and in such circumstances conformance with those Success Criteria will not be required. The Parties also acknowledge that to the extent the Success Criteria do not address certain features or elements, this provision shall not apply to those features and elements.

3.2

Discord will use reasonable efforts to ensure that new features, functions or changes to the Discord Website or Apps that are initiated on or after the Effective Date will conform to the Access Standard when the new feature, change, or site element is launched.

3.4

Beginning on the Effective Date, Discord will use best efforts to include information about significant accessibility improvements, as applicable, in release notices for new Discord Website or Mobile App releases.

3.5

The Parties recognize that Discord may encounter unforeseen complications in meeting the accessibility timelines set forth in this agreement. Therefore, if Discord determines it is necessary to extend any date(s) in this Agreement for a period of 120 days or fewer, Discord shall notify Claimants of the new date as soon as Discord determines the new date. If Discord proposes to extend any date by greater than 120 days, Discord will provide Claimants with the new proposed schedule(s), and the reason(s) for the extension, and the Parties will negotiate a new date in good faith. Disputes regarding a requested extension of greater than 120 days will be resolved pursuant to Section 8 of this Agreement.

3.6 Accessible PDFs

3.6.1: Discord does not typically use PDFs on its Website or Apps to communicate with customers or other third parties. To the extent Discord uses a PDF to interact with users or members of the public, Discord will use Accessible PDFs.

3.7

CAPTCHA. If any Completely Automated Public Turing Test to Tell Computers and Humans Apart or similar visual or textual Turing or reverse-Turing verification test (commonly known as “CAPTCHA”) is used on the Discord Website or Apps, Discord will take reasonable steps to ensure that there are alternative security measures that are usable by Persons with Visual Impairments.

3.8

Third-Party Content. Discord does not have any obligations under this Settlement Agreement with respect to Third-Party Content except for the following (and as provided in the Confidential Appendix):

3.8.1: New Third-Party Content After The Effective Date. If after July 1, 2021, Discord issues requests for proposals for development or inclusion of customer-facing Third-Party Content on Discord Website or Mobile App(s), Discord will include conformance with the Access Standard as a component in all such requests for proposals. Discord will use reasonable efforts to select Third Party Vendors for customer-facing content who can conform to the Access Standard, provided that those vendors also meet all other criteria in the request for proposals.
3.8.2: No later than October 1, 2021, Discord will ensure that all Discord staff with decision-making responsibility for procurement of Third Party Content are familiar with the Accessible Technology Procurement Toolkit published by Disability:IN, available at https://private.disabilityin.org/procurementtoolkit/.
3.8.3: Discord is not obligated under this Agreement to ensure User-Generated Content conforms with the Access Standard. However, Discord will ensure that, no later than December 31, 2022, the tools on the Discord Website and Apps support the production of accessible content, and that such tools conform with the Authoring Tool Accessibility Guidelines 2.0.

3.9

AI overlay tools: Unless separately agreed by the parties, Discord will not meet the obligations set forth in this Agreement merely by licensing, purchasing, or otherwise using any software tool that: (1) requires users to download particular assistive technology to obtain any accessibility features on the Discord Website or Mobile Applications(s); or (2) promises ADA compliance upon the installation of one line of code.

4. Miscellaneous Digital Accessibility Provisions

4.1 Digital Accessibility Policy

4.1.1: No later than October 1, 2021, Discord will develop an internal policy regarding the accessibility of the Discord Website and Discord Apps (“Digital Accessibility Policy”) that, at a minimum, will include: (i) a statement of the Access Standard and Discord’s commitment to use it; and (ii) methods by which Discord clients can report web and mobile accessibility feedback and the process for addressing the feedback. Discord will provide Claimants with a draft of the Digital Accessibility Policy prior to its being finalized. Claimants will provide their feedback on this draft policy within fifteen (15) days of receipt, and Discord will consider the feedback provided by Claimants in good faith, and implement the policy within 30 days thereafter.
4.1.2: Discord will use reasonable efforts to ensure the Digital Accessibility Policy is promptly distributed to all relevant employees working on accessibility issues.

4.2 Usability Testing

4.2.1: Throughout the Duration of this Full Agreement, Discord will consider in good faith feedback from Claimant regarding the accessibility and usability of the Discord Website and Apps.
4.2.2: Discord will use reasonable efforts to ensure that the Discord Website and Apps are tested periodically throughout the Duration of this Agreement for usability by persons with disabilities and conformance with the Access Standard.
4.2.4: Discord will give good faith consideration to all usability testing results and other feedback (collectively “Feedback”) provided pursuant to Section 4.2 consistent with the terms of this Agreement.

4.3

Additional Testing. Discord will continue to ensure that both automatic and manual testing is used to help it assess Discord Website’s and Apps’ conformance with the Access Standard.

4.4

Mobile Resources. No later than October 1, 2021, Discord will ensure that employees who design, develop, maintain, or otherwise have responsibility for Discord Apps are familiar with industry standard accessibility resources for such applications.

7. Reporting

Within 30 days of the end of each six month period during the Duration of this Full Agreement, starting with the end of Q3 2021, Discord will report to Claimants in writing regarding the progress of the remediation set forth in this Agreement. If any Party requests to discuss this information following receipt of the report, the Parties shall make themselves available for this purpose.

8. Training of Discord Staff

To ensure effective implementation of this Agreement, Discord will provide training to appropriate staff. Such training should generally include: 1) training of Customer Experience Staff regarding appropriate communications with Persons with Visual Impairments; and how to route inquiries concerning digital accessibility issues to appropriate trained personnel for a timely response; 2) training of appropriate Engineering Staff regarding website and mobile technical support and accessibility issues; and 3) training of appropriate Engineering Staff regarding conformance with the Access Standard.

9. Procedures in the Event of Disputes

9.1: Notice of Non-Compliance. If a Party believes that any other Party has not complied with any provision of the Full Agreement, that Party shall provide the other Party with Notice of Non-Compliance containing the following information: (i) the alleged act of non-compliance; (ii) a reference to the specific provision(s) of the Settlement Agreement or Confidential Addendum that are involved; (iii) a statement of the remedial action sought by the initiating Party; and (iv) a brief statement of the specific facts, circumstances and legal argument supporting the position of the initiating Party.
9.2: Response. Within thirty (30) days of receipt of a Notice provided pursuant to Section 9.1, the non-initiating Party shall respond to the initiating Party in writing.
9.3: Meet and Confer. Within two weeks after the response described in Section 9.2, the Parties shall informally meet and confer and attempt to resolve the issues raised in the Notice.
9.4: Submission to Mediation. If the matters raised in a Notice provided pursuant to 9.1 are not resolved within sixty (60) days of the initial meet and confer required by Section 9.3, either Party may submit the unresolved matters to nonbinding mediation before a mutually agreed upon mediator affiliated with Judicial Arbitration & Mediation Services (“JAMS”), or such other mediator as the Parties may jointly designate.
9.5: Submission to Arbitration. If mediation fails to resolve the matter, the Parties then will settle the matter finally by means of arbitration conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures at a mutually convenient location. The award of the arbitrator will be enforceable in a court of competent jurisdiction.

10. Notice or Communication to Parties

Any notice or communication required or permitted to be given to the Parties shall be given in writing by e-mail, addressed as follows:

To: Claimants:

Matthew Handley
Handley Farah & Anderson PLLC
777 6th Street NW
Eleventh Floor
Washington, DC 20001
e-mail: mhandley@hfajustice.com

Lainey Feingold (by email only)
Law Office of Lainey Feingold
e-mail: LF@LFLegal.com

To: Discord:

Stephen Gikow
Discord Inc.
email: legal.notices@discordapp.com

Brian Willen
Wilson Sonsini Goodrich & Rosati
email: bwillen@wsgr.com

11. Publicity Regarding This Agreement and Its Terms.

The Parties will issue a joint press release on a mutually agreed upon date following execution of this agreement. The Parties agree not to issue any press release related to this Agreement except as described in this Section.

12. Agreement Binding on Assigns and Successors; No Third Party Beneficiaries.

12.1: Assigns and Successors. This Full Agreement shall bind any assigns and successors of the Parties, who have the right to implement the actions required.
12.2: No Third Party Beneficiaries. This Full Agreement is for the benefit of the Parties hereto only and no other person or entity shall be entitled to rely hereon, receive any benefit herefrom, or enforce against any Party any provision hereof. The Parties specifically intend that there be no third party beneficiaries to this Full Agreement.

13. Force Majeure.

The performance of Discord under this Full Agreement shall be excused during the period and to the extent that such performance is rendered impossible, impracticable or unduly burdensome due to acts of God, strikes or lockouts, unavailability of parts, equipment or materials through normal supply sources, security threat, or any other event of force majeure. If Discord seeks to invoke this Section, it shall notify Claimants in writing as soon as reasonably practicable, specifying the particular action(s) that could not be performed and the specific reason for non-performance. Claimants’ Counsel and Discord will thereafter meet and confer regarding an alternative schedule for completion of the action that could not be performed, or an alternative action. Any dispute regarding the applicability of this Section, or any future action to be taken, that remains after the meet and confer session will be handled as a dispute pursuant to Section 8 of this Agreement.

14. Recitals.

The terms of any Recital attached hereto are fully incorporated into this Full Agreement and are an integral part thereof.

15. Multiple Originals/Execution in Counterparts.

Each Party and Claimants’ Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile and PDF signatures shall be accepted as original.

16. Non-Admission of Liability.

In entering into the Full Agreement, Discord does not admit, and specifically denies, that it has violated or failed to comply with the ADA or any other law related to accessibility.

17. Integrated Agreement.

The Full Agreement constitutes the entire agreement of the Parties relating to the subject matters addressed therein.

18. Modification Based on Change of Law or Regulations.

If, after the Effective Date, either Party believes that there is a change in any applicable law or regulation which requires a modification of this Agreement because it imposes a different obligation than provided in this Agreement, the Party shall notify the other Party in writing. The notification will include the way in which the Party contends the Agreement should be modified as a result of the change in law or regulation. The proposed modification will become effective thirty days after such notification unless the other Party objects in writing to the proposed modification. In the event of a disagreement between the Parties over the appropriate modifications to the Agreement as contemplated by this Section, the Parties shall meet and confer and shall work together in good faith to resolve the disagreement. Failure to reach agreement during such meet and confer shall be considered a dispute to be resolved pursuant to Section 8.

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