In federal courts alone, the number of federal website accessibility lawsuits has jumped 256% in the past five years, to 2,895 in 2021, according to law firm Seyfarth Shaw LLP, based in Sacramento, one of the leading go-to law firms for the wine industry in these cases.
New York had the most, with 2,074 filings, followed by California at 359 and Florida at 185. The law firm noted that California has so few cases compared to New York because many Filings of this type are in state courts because California law in this area is stricter.
The federal cases seek relief under Title 3 of the Americans With Disability Act, which governs accessibility in businesses.
Originally written to cover physical access to premises, which sparked a series of lawsuits over wheelchair access to tasting rooms, restaurants and other venues over a decade ago, title 3 has been interpreted by the courts as also applying to websites. California adopted the ADA and Section 508 of the Federal Rehabilitation Act in its Unruh Civil Rights Act, codified in Section 51 of the California Civil Code.
Virji pointed out that existing teeth under the ADA and Unruh can be important. ADA violations are strict liability, so it is not necessary to prove intentional discrimination, but remedies are limited to injunctive relief and reasonable attorneys’ fees. But Unruh, has minimum damages of $4,000 per violation, up to three times actual damages.
Strict website accessibility rules are murky. In 2010, the US Department of Justice began developing rules on how ADA Title 3 would apply to website accessibility, but that effort has since languished. Until federal standards are established, courts pointed to those developed by the World Wide Web Consortium, a global group commonly referred to as W3C and recognized as the go-to source for how websites should be constructed.
Its Web Content Accessibility Guidelines, or WCAG, has three levels of conformance: A, AA, and AAA. The latest version is 2.1, released in 2018, and 2.2 is expected to be released in a few months, with 3.0 expected to roll out next year. The courts have designated WCAG 2.1 AA as the benchmark for enterprise accessibility.
In early March, 181 accessibility advocacy groups wrote a joint letter to the Department of Justice, demanding action on developing rules for website standards. The agency responded on March 18 with guidance that largely reaffirmed previous guidance for ADA website accessibility, according to law firm Seyfarth Shaw.
Meanwhile, the National Federation of the Blind, one of the letter’s signatories, supported congressional action on developing standards and to provide a clear path for companies to resolve website issues before litigation. , according to John Pare, Executive Director for Advocacy and Policy. .
“We’re disappointed that some lawyers seem more interested in a quick monetary settlement than working with companies to ensure their website is accessible,” Pare said.
Due to the growing number of lawsuits regarding website accessibility, specialist consultancy firms that audit and repair websites have sprung up in recent years, in addition to additional services in this area by site development companies. traditional websites.
This problem has spawned a new form of these consultancies developing software with varying levels of automation that website owners can install to quickly deliver what is supposed to be a standards-compliant, accessible experience. For example, a visitor can change the colors of certain elements to be more contrasting or not have colors that cannot be seen by some under certain conditions.
Some of the North Coast winemakers named in the lawsuits have such software, called overlays, running on the websites named in the complaints. For example, defendant Jackson Family Wines contracts with AudioEye for software running on its Matanzas Creek Winery website, which was named in a complaint, and its corporate sites. Another defendant, Cline Cellars, uses the accessiBe service on its Sojourn Cellars site and others in its portfolio.
David Moradi, CEO of AudioEye, told the Business Journal that these lawsuits have only just begun.
“It’s a huge problem,” he said. “There are 1.9 billion websites worldwide, and the traditional approach of doing everything at source, which advocacy groups prefer, will not scale.”
In addition to automated solutions that modify the website to address visual, auditory and other visitor challenges, the company provides quarterly audits of clients’ websites to highlight issues that their IT team or consultants need to prioritize for customers. to correct. The company said it has 75,000 to 85,000 customers.
The company knows of two of its wine customers who have been sued. The certification statement included in the website package indicates the standards the site meets and the plan for review and upgrade. Such a statement may form part of the defense against litigation, according to Dominic Varacalli, chief operating officer of AudioEye.
But the board of directors of the National Blind Foundation passed a resolution last year skeptical about the suitability of overlay software for automatically fixing website accessibility issues.
Jeff Quackenbush covers wine, construction and real estate. Prior to The Business Journal, he wrote for Bay City News Service in San Francisco. He graduated from Walla Walla University. Contact him at [email protected] or 707-521-4256.