This article has been updated since it was first published on November 3, 2021. The most recent update was added on December 28, 2021. Read the updates for this article.
This post shares four recent developments in the legal space about web accessibility overlays. Three are very troubling. One gives hope for stemming the tide of quick-fix “not-solutions” that can actually make websites less usable by people with disabilities.
New to the overlay issue? I first wrote about significant problems with web accessibility overlays in an August, 2020 article on this website titled Honor the ADA: Avoid Web Accessibility Quick-Fix Overlays. There is now a sizable collection of articles and videos explaining why web accessibility overlays don’t deliver on sweeping promises of legal compliance or full accessibility. And worse, how they can actually make sites more difficult for disabled people to navigate.
Two good sources that gather resources on web accessibility overlays:
- The Overlay Factsheet lists many resources and includes a four-part statement signed by over 600 accessibility advocates from around the world (including me) regarding ethical response to overlays. [The signed statement is in the Factsheet here.]
- The Should I Use an Accessibility Overlay site lists many resources and includes straight forward answers to common questions about overlays. The bugs bunny meme screaming “no” that illustrates this article was taken (with permission) from this site.
In this Article
Jump to the following sections of this article. If you are aware of legal activity in connection with web accessibility overlays that should be included in a future update, please let me know.
- In this Article
- French Overlay Company Sues Advocates for Their Role in the Global Overlay Conversation
- AccessiBe and Accessus.ai target US site owners receiving demand letters from lawyers
- The hope: More evidence that an overlay can’t protect companies from lawsuits
French Overlay Company Sues Advocates for Their Role in the Global Overlay Conversation
I recently learned that French overlay company FACIL’iti has filed legal actions against two accessibility leaders who have participated in the global overlay public conversation. Here in the United States there is something called a SLAPP suit. The initials stand for Strategic Lawsuit Against Public Participation. Also called intimidation lawsuits, a SLAPP suit tries to intimidate and silence critics with the cost and fear of a legal defense, hoping they will drop their criticism or opposition.
In French the equivalent of a SLAPP suit is “poursuites bâillons” (literally “gagging pursuits”). Strategic Prosecutions Altering the Public Debate is a detailed report (in French) on the dangers of and potential reforms for this phenomenon in France.
The two actions described here certainly have the trappings of this type of legal action intended to stifle certain opinions and advocacy.
Lawsuit against French web developer Julie Moynat
I was shocked to learn earlier this Fall that the French accessibility overlay company FACIL’iti has sued web accessibility champion Julie Moynat for the French version of defamation based on her participation in the global discourse about the harms of overlays. This type of lawsuit is a threat to ethical conversations about how to make the web better in general, and the role of overlay products in particular. It is a lawsuit that should be of deep concern to everyone who cares about a web that works for everyone.
FACIL’iti has sued Julie Moynat in her individual capacity. Julie’s article Help for my lawyer’s fees in the FACIL’iti lawsuit against me is a good explanation in English of what the suit is about. (Julie is currently not seeking contributions for legal support.) The article lays out Julie’s comments about the overlay company and explains the lawsuit as follows:
In this subpoena, FACIL’iti expressed their wish for the Tribunal to press charges against me for denigration to pay damages and interests (without any concrete proof of the financial prejudice endured) of up to € 5 000, and ordering me to stop, moving forward, writing any words which nature is to discredit the FACIL’iti solution by denigrating it and this, on all media, and notably, on social networks, blogs, websites, webinars. In addition to that, FACIL’iti also demands for me to be penalised to pay € 5 500 in accordance with the dispositions of the article 700 of the code of civil procedure. This would mean a total of € 10 500 in damages and fines.article on Julie Moynat’s website, La Lutine du Web
Lawyers met about the case in early October. The next court hearing is early January.
I met Julie Moynat through Twitter. I know her to be an ethical and generous contributor to the international conversation about overlays. (One generous thing she did unrelated to overlays was contribute to the Global Accessibility Laws page of this website with information about accessibility law and policy in France.)
As I often say in my talks, Twitter is home of a generous digital accessibility community that knows no borders. A community that shares the common goal of an inclusive web that works for people with disabilities. Silencing any member of that community like this lawsuit attempts to do risks silencing all of us.
I urge the international accessibility community to speak in one voice against this lawsuit and the one described below, and urge that they be dropped immediately.
FACIL’iti sends “formal notice” to French web accessibility consultancy Koena
Julie Moynat is not FACIL’iti’s only target in France. Recently I discovered that the French digital accessibility firm Koena is also on the receiving end of legal action intended to silence critics of web accessibility overlays.
Koena’s “manifesto” places digital accessibility firmly in the world of diversity and inclusion. Statement number 3 is:
Enabling people with disabilities to participate in society is a matter of justice, not solidarity. Inclusion is a prerequisite of the French motto “Liberté, Egalité, Fraternité” (liberty, equality, fraternity). from the Koena Manifesto
Koena founder and president Armony Altinier has written extensively about FACIL’iti’s legal attempts to stop the organization from being part of the global overlay conversation. The article “Koena given formal notice by FACIL’iti” explains both the legal action and Koena’s views about digital accessibility and the limits of accessibility overlays.
Action by the French trade association Cinov Numerique supports the idea that FACIL’iti’s legal manuevers are designed to silence participants in a public conversation about a public issue (including disabled people in the digital world). Cinov Numerique “represents and defends the interests of digital professions.” The Association issued a “Motion of support for the Koena company.” Among other things, the motion asks for:
The end of all practices relating, via a formal notice, to a desire to silence a debate and / or to prevent the expression of an opinion, when these are exercised without any desire to harm a third-party professional actor.Cinov Numerique statement in support of Koena
Koena is being targeted by FACIL’iti as a business, while Julie Moynat is facing legal action as an individual. The threat to ethical, public conversation about digital accessibility is the same: individuals and organizations must be free to state their opinions and share facts about all aspects of digital inclusion. Legal actions to silence critics is contrary to the spirit of the web and the goals of inclusion.Back to top
AccessiBe and Accessus.ai target US site owners receiving demand letters from lawyers
On October 19, 2021, an online publication called “Digital Journal” published a press release distributed by “Marketers Media” with this screaming headline: “265,000 Website Accessibility Demand Letters Drives New Program from Accessus.ai”
I have written and spoken about the ethics of certain lawyers operating in the digital accessibility legal space in the United States. And I’ve written about fear as a poor motivator for accessibility. So I was curious about a “new program” flowing from such a high number of demand letters. (I still haven’t figured out where that number came from.)
The press release described an “Accessibility Litigation Support Suite” offered by Accessus.ai that includes the following:
- 100% WCAG compliance in less than 48 hours
- An Accessibility Statement and Certificate of Performance
- An initial suggested response to the demand letter
- Monthly Accessibility audit and statement
- A free Accessibility Compliance Evaluation (ACE) tool to check the plaintiff firms level of compliance
Something promising “100% WCAG compliance in less than 48 hours” is something that is over-promising, if not worse. The LinkedIn profile of Jeff Minderlein, Co-Founder & Chief Operating Officer of accessus.ai repeats the claim of “ADA~WCAG 2.1 Compliance In Less Than 48 Hours.” It’s a claim that sounds very similar to over-promising statements of AccessiBe, the tool subject to a scathing NBC News report earlier this year.
My instinct was right. On October 31st I went to the AccessUS.ai website and selected the “Lawsuits” link at the top of the page. When I clicked in the page (not on a video, just clicked when I was on the page) a voice started speaking, saying: “Hi, I’m Ronnie from AccessiBe the number 1 fully automated ADA and WCAG compliance solution. In this video you will learn…..”
I did not see a video (or any captions), just heard the voice, and could only stop the voice by leaving the page.
Why am I putting this marketing ploy in a legal update? Because many site owners who get demand letters don’t know about digital accessibility or how to make their sites available to people with disabilities. Luring them into a relationship with an overlay company with known deficiencies is not a good solution to a legal demand letter. (The site does suggest that letter-receivers contact a lawyer. It also recommends a “complimentary advisory call in order to refer you to an experienced firm in the legal jurisdiction of your complaint.” Are those lawyers AccessiBe affiliates or partners too?)
If a company gets a demand letter about an inaccessible website, it should consult with a reputable lawyer. The Accessibility Litigation Support Suite from accessus.io is not that.
The hope: More evidence that an overlay can’t protect companies from lawsuits
The French lawsuits against accessibility champions and a claimed solution to accessibility demand letters are distressing. But there is a hopeful update in the recent settlement of a lawsuit against a company who thought their overlay would protect them.
It has been clear for awhile that a one-line of code overlay does not protect companies from accessibility lawsuits. (Web consultancy Usablenet reported that “more 250 lawsuits were filed in 2020 against companies using widgets or overlays as an accessibility solution for their websites.”)
Today’s update is an October, 2021 settlement agreement in a digital accessibility case against online eyewear retailer Eyebobs. The Eyebobs website used the AccessiBe overlay, which did not protect them from the lawsuit.
The settlement is significant because it came after a detailed declaration by accessibility consultant Karl Groves about how and why the case should proceed despite Eyebob’s use of the overlay.
The settlement covered Eyebobs “digital properties,” defined as Eyebob’s “Website, New Websites and Mobile Apps, and subsequently acquired Websites and Mobile Apps.” (Overlays do not even claim to make mobile apps accessible.) It addressed many aspects of an accessibility program and required nominal payment to the plaintiff in addition to plaintiffs’ fees. (A detailed article by accessibility champion Sheri Byrne-Haber analyzing the settlement is linked below.)
I call the Eyebobs settlement hopeful because I am HOPING that by sharing information about the case, more site owners will recognize that the path to digital inclusion is not one line of code for a license fee. Think of the money that went into fighting and then settling the lawsuit that could have been spent on remediating barriers and implementing accessibility.
(Fighting a lawsuit is not the only strategy when faced with claims of access barriers. My book, Structured Negotiation, a Winning Alternative to Lawsuits shares stories and strategies of companies that have worked with the disability community on digital accessibility withOUT any lawsuit at all. The book’s second edition was just published, with more win-wins, including examples of using the strategy even in a filed case.)
information and documents about the Eyebobs case
- Settlement agreement in the Eyebobs digital accessibility case
- Court complaint against Eyebobs. One of the allegations in the publicly available complaint is: “Defendant installed a low-cost overlay on the Digital Platform developed by a company called accessiBe. accessiBe claims this overlay can automatically bring a website into compliance with the ADA by resolving the website’s underlying accessibility issues. Unfortunately, the overlay fails to provide screen reader users, including Murphy, full and equal access to the Digital Platform.”
- Declaration of accessibility expert Karl Groves in support of the plaintiff’s position on overlays.
- Excellent article by accessibility expert Sheri Byrne-Haber summarizing the Eyebobs settlement with an emphasis on how the terms undermine claims that an overlay can make a website accessible and protect against lawsuits.
I will continue to follow the overlay saga as it plays out in the legal space around the globe. I look forward to more hopeful reports and fewer stories of lawsuits intended to stifle accessibility champions and the global push for an inclusive digital world.
Updates to this article
December 28, 2021 Update
On December 16, 2021 Disability Rights Advocates announced it had settled its lawsuit against human resources giant ADP. ADP had used an AudioEye overlay but it did not protect the company from a lawsuit by blind employees. The settlement agreement specifically states: “For the purpose of this Agreement, “overlay” solutions such as those currently provided by companies such as AudioEye and AccessiBe will not suffice to achieve Accessibility.’ Read the article on this website about the ADP settlement.
December 24, 2021 Update
December 2021 brought more evidence that an overlay like AccessiBe does not protect site owners from web accessibility lawsuits. That month a judge issued an Opinion in a case in the United States federal court in New York’s Southern District. The case is called Quezada v. U.S. Wings, Inc. The lawsuit claimed that the U.S. Wings website was not accessible to blind visitors. The judge wrote (citing the record) that
U.S. Wings stated that they bought a one-year partnership with accessiBe, a website technology vendor, to ensure their website remains compliant with the Website Content Accessibility Guidelines, known as the WCAG 2.1 Guidelines. Throughout early 2021, accessiBe provided U.S. Wings with three audit reports that concluded that the website was in compliance with WCAG 2.1. The most recent audit report from accessiBe is dated April 2, 2021. U.S. Wings Court Opinion
U.S. Wings argued that these reports meant its website satisfied the Americans with Disabilities Act and that the case should be thrown out. Not so fast said the judge:
The Court concludes that U.S. Wings has not shown that they have undoubtedly fixed accessibility issues on their website as multiple barriers still allegedly exist.U.S. Wings Court Opinion
In reaching its decision, the judge in the U.S. Wings case relied on yet another case where a judge rejected the claim that using an overlay was a shield for an ADA or New York City Human Rights Law (NYCHRL) violation:
In September 2021, a similar case involving ADA and NYCHRL violations was brought to this district. In Angeles v. Grace Prod., Inc., the defendant’s website was allegedly inaccessible for visually impaired customers. The defendant submitted documentation to illustrate partnership with accessiBe, while the plaintiff filed an affidavit from Mr. Moody to support their claims. The court denied the defendant’s motion to dismiss because the defendant “ha[d] not met its ‘formidable’ burden of demonstrating that it is ‘absolutely clear’ that the website has been brought into compliance and will remain as so.
This court opinion is the first skirmish in this case. Fighting this part no doubt cost tens of thousands of dollars in attorney fees, and it’s not over yet. It should be a stark reminder that licensing AccessiBe or similar overlays will not shield site owners from a lawsuit. And if you need more of a reminder, check out the Year End Report of ADA Digital Accessibility Lawsuits from Usable Net to learn about more lawsuits filed against websites using overlays.