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How to Operate a Website that Complies with Today’s Accessibility and Privacy Standards

September 8, 2016

Jessica L. FrankenPamela M. Ploor

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• Informational only

• Interactive

• Chat feature, blogs, reviews

• Contact us

• Product or service sales

What Type of Website do You Have?

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Basic Website Requirements

• Terms of Use – All websites

• Privacy Policy– All websites

• Acceptable Use Policy • Interactive Websites

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Basic Website Requirements

• Terms of Sale– Websites selling products

Terms of Service – Websites selling services

• Copyright Notice– All websites

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Terms of Use

• Applies to any visitor to the website• Contains information on:

– Permitted use/ownership of the site and content

– Copyright infringement reporting– Third party website links– Limits of Liability/Warranties

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Acceptable Use Policy• Posted on sites on which users can

post information • Lays out the "rules"

– What type of content should not be posted– Right (not obligation) of host to review and

remove– No infringement of the copyrights of

others/disclosure of personal information

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Privacy Policy• Applies to any visitor to the website• Describes:

– What information is gathered– How it is gathered– How it is used– How it is protected

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Security

• Understand what is gathered• Determine appropriate protection• Implement• Describe

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Terms of Sale/Terms of Service

• Based upon standard terms• Available to visitor, not just purchaser• Accepted at time of purchase• Incorporates Privacy Policy/Terms of

Use

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Location, Location, Location

• Footer of each website page• Top or side of page• Connecting links

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What is Website Accessibility?• According to Web Content Accessibility

Guidelines (WCAG), accessibility is:– Making it easier for users to see and hear

content (“perceivable”)• Content with text and non-text

alternatives (like captions)• Content presented in different ways

without losing meaning• Assistive technologies

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What is Website Accessibility?– Making website content “operable”

• Content accessible via keyboard• Sufficient time to read and use content• No flashing visual content, which can

trigger seizures– Making website “understandable”

• Text is readable and understandable• Content appears and operates

predictably

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What is Website Accessibility?

– Making website “robust”• Maximize compatibility with current and

future user tools

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Standard for Website Accessibility

• In the U.S., no mandatory federal standard for private companies’ websites

• Americans with Disabilities Act (ADA), Title III (Public Accommodations)– Bars disability discrimination in “the full and

equal enjoyment of the goods, services ... of any place of public accommodation …”

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Standard for Website Accessibility• ADA (Title III)

– Applies to an entity with operations that "affect commerce" and are a "place of public accommodation”• Commerce is "travel, trade, traffic,

commerce, … or communication” among states or points in a state but through another state or foreign country (42 U.S.C. § 12181[1])

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Standard for Website Accessibility• ADA (Title III)

• 50+ “places of public accommodation” –All are physical facilities that are open

to the public –Websites are not mentioned, even

when Congress updated ADA in 2008

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Standard for Website Accessibility• ADA, Title III (Public Accommodations)

– United States Department of Justice (DOJ) enforces Title III ADA

– DOJ has not yet issued final regulations on website accessibility – delayed again until 2018• DOJ’s May 9, 2016 SANPRM

– DOJ enforcement position is ADA (Title III) applies to websites

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Standard for Website Accessibility• ADA, Title III (Public Accommodations)

– Federal courts:• Appellate courts are split on whether ADA

applies only to a physical location• No appellate court has held ADA applies

to websites • Courts are declining to dismiss ADA

website cases early, which means businesses must litigate the cases or settle

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Standard for Website Accessibility• ADA, Title III (Public Accommodations)

– Federal courts:• Private plaintiff demands for settlements

based on alleged inaccessible websites are increasing significantly

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Standard for Website Accessibility• Don’t forget state and local laws

– New York’s Human Rights Law• 2014 settlement with 12 banks for

inaccessible websites– California’s Unruh Act

• 2016 holding that inaccessible website violated the Unruh Act (Davis v. BMI / BND Travelwarecompany, Case No. CivDS150682 (San. Bern. Co 3/21/2016)

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Standard for Website Accessibility• World Wide Web Consortium (W3C) is the

current leader internationally in developing web standards, including on accessibility

• W3C’s Web Accessibility Initiative (WAI) issued WCAG 2.0

• Different levels of compliance (from A [must], AA [should], and AAA [may])

• WCAG 2.0 at the AA level is current voluntary standard of accessibility according to DOJ enforcement position

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Private Plaintiff Remedies • For ADA Violation (Title III)

– No compensatory or punitive damages– Prevailing attorney’s fees– A court may order a business to stop

discrimination• For State Law Claims

– Compensatory and punitive damages may be available

– Prevailing attorney’s fees– A court may order a business to stop the

discrimination

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Recommendations for Business• Assess your practical risk tolerance

– Type of website – Connection to brick and mortar business, if

any– Location of business and website

• Assess accessibility of website preferably under protection of attorney-client privilege so assessment cannot be used against company

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Recommendations for Business

• Be mindful of accessibility issues on your website

• Consider addressing easiest or highest impact issues– Most visited pages– Template for future web pages– Changes that can be made easily or

cheaply• Consider adding web page on accessibility

on the website

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Recommendations for Business

• Don’t forget other ADA issues – such as in physical location or how the company provides services

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Recommendations for Business

• If company gets a letter demanding payment in exchange for settlement of ADA claim related to alleged inaccessible website, consult your legal counsel– Some business have filed lawsuits against the

lawyers making such demands• Mazzio's, LLC v. Carlson, Lynch, Sweet &

Kilpela, LLC, N.D. Ok., Case No. 16-cv-59-CVE-TLW, 2/2/2016

– Claimed violations may not violate ADA at all

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Questions?

© 2016 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.