Seyfarth Synopsis: A Committee in the New York State Senate aims to develop a legal standard for the accessibility of business websites under New York law, in response to the exponential increase in website accessibility litigation in the state. Whether state legislation could stem this tide, or instead make matters worse for businesses, remains to be seen.

According to a recent article published in the New York Law Journal, a committee of state legislators in New York plan to develop a legal standard for website accessibility, in the wake of years of regulatory inactivity by the federal government.

As we have previously written about, various state and municipal jurisdictions have laws on the books requiring that government agencies and contractors provide accessible websites. New York, however, would be the first state in the country to directly hold business websites to an accessibility standard.

Ironically, this legislative effort appears, from the NYLJ article at least, to be motivated by a concern over the surge of website accessibility filings and their impact on businesses.

A State Website Accessibility Standard To Reign In Federal Lawsuits?

The NYLJ article cites statistics published on our blog that ADA plaintiffs filed an astounding 1,564 website accessibility lawsuits in New York federal courts in 2018, which amounted to more than two-thirds of all federal website cases filed throughout the country last year.

The representative leading this initiative, State Sen. Diane Savino, referred to plaintiffs-side attorneys commencing these lawsuits as “ambulance-chaser[s]” who are “exploiting loopholes in the law” to look for quick settlements, and described the cases as having the potential to “bankrupt a small business.”

Senator Savino attributed the surge in website accessibility filings to “a real lack of regulation from the federal level down to the states.” Accordingly, the Internet and Technology Committee that she chairs will “try to develop a set of standards [for website accessibility] recognizing . . . that there are not four walls of the internet.”

It is laudable that Senator Savino and her Committee are attempting to tackle the surge in “surf by” ADA lawsuits. That said, we are not sure how developing a legal standard for business websites at the state level will mitigate the surge in federal lawsuits.

In our experience, most website accessibility lawsuits in New York are filed in federal court. Since Title III of the ADA does not provide for damages, New York plaintiffs typically add “tag-along” claims under state (and municipal) law for damages. However, as demonstrated from states’ attempts to reign in physical barrier cases, no state law can affect the remedies and procedures available under the federal ADA.

Would Legislation Provide Relief To Businesses, Or Create More Uncertainty?

Website accessibility lawsuits are usually based on the ADA’s general mandate that public accommodations provide people with disabilities equal access to their goods, services, and accommodations, specifically through auxiliary aids and services to ensure that their communication with individuals with disabilities is “effective.”

These regulations expressly state that a business can choose which auxiliary aid or service to provide, however, as long as the method is effective, free of charge, and safeguards the privacy and independence of the individual with a disability. Requiring New York businesses to conform their websites to a set of accessibility standards such as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, without more, would reduce the flexibility that businesses currently have in how they provide “effective communication” as to the content and services available on websites and other digital assets.

In addition, federal courts are addressing website accessibility issues on a case-by-case basis. A body of case law is thus developing in this area, albeit with distinctions across jurisdictions. A state law standard that is inconsistent with these rulings may add to the confusion for businesses.

An Opportunity For Governmental Direction?

In her remarks, Senator Savino described states as “the incubators of ideas,” which is particularly opportune in the area of website accessibility, where federal regulators “have dragged their feet.” The prospect of legislation in this area presents, in our view, an opportunity for a governmental body to provide reasoned and balanced direction on this issue, which has been lacking at the federal level.

Nevertheless, the devil is in the details. The task of regulating this area effectively and fairly will involve the consideration of a number of issues. For example:

• A standard that accounts for user experience. We know that compliance with every WCAG 2.1 AA requirement is challenging and requires extensive resources and expertise that most businesses do not have. Should the legislation prioritize frequent user journeys (g., browsing and searching for products, placing orders, and searching for brick and mortar business locations) over less traveled areas of a website?
• Legacy content. Should any technical standard apply only to new content or new websites? Should it apply only to existing content that has been updated or modified within a specified period of time?
• Safe harbor. Businesses modify their digital properties much more frequently than their physical, “brick and mortar” spaces. Updates and new content can inadvertently impact the accessibility of a website or other digital asset. Website “bugs” do not equate to intentional discrimination. Regulations should contain a safe harbor or cure period for accessibility issues introduced by an update or change to a website or digital asset.
• An implementation period. Businesses must be given sufficient time to comply with the standard, and should be afforded a “safe harbor” from private claims during this period. There are simply not enough accessibility experts out there to assist businesses to make their websites accessible. Small businesses in particular must have a longer time period for compliance.
• Third party website developers. Most businesses know little about website development and hire third party vendors to create and/or update their websites. From our experience, most of these third party vendors do not have the expertise to create and maintain accessible websites and other digital assets. Any legislation must recognize and address the difficult position that businesses are in because they are the ones in the lawsuit crosshairs, not the website developers.
• Third party content. Many businesses have embedded third party content (g., maps) on their websites, over which they frequently have little or no means to change (other than removing the content entirely). Legislation over the accessibility of business websites should recognize these practical limitations on accessibility efforts.
• Alternative access for complex content. Detailed charts and graphics with embedded text, and other complex content, can present challenges for screen reader users. These features can be very burdensome and expensive for businesses to address. Should legislation exempt complex content, or permit businesses to provide an alternative means of providing the information?
• Small business considerations. Any legislation must acknowledge that small businesses generally cannot afford to hire expensive accessibility consultants and have little leverage to make their website development vendors conform their websites to accessibility guidelines. Strict adherence to these criteria, as Senator Savino alluded to in the NYLJ article, could bankrupt many small businesses.
• Future technology. One of the challenges of regulating this area is the fast-paced nature of technological change. Any legislation needs to promote, rather than discourage, businesses in exploring new technologies that could reduce the costs of compliance and provide enhanced access to digital content for individuals with disabilities.
• It is positive that elected leaders are taking note that the litigation environment over the accessibility of websites is becoming increasingly untenable for businesses. Should new legislation limit damages for website access violations, or require some procedure or process before a litigant can file a claim?
• A litigant can visit the websites of businesses much faster than he or she can visit (and encounter barriers to access) at “brick and mortar” locations. Should a few minutes of internet browsing give rise to dozens of class action lawsuits over accessibility? Accordingly, should the law provide for enhanced standing requirements in website accessibility cases to ensure that plaintiffs have a legitimate stake in the case? What can be done to reign in litigants who file lawsuits resulting in quick settlements en masse?
• There are many issues for the Committee to consider, and it is critical to include practitioners who are “on the ground” working through these issues to develop sensible legislation that will advance the dual goals of accessibility and reducing the crushing number of lawsuits.